Fight Against "Capitol Area" Carry

[Butch00]

Agreed and even hinting at banned conduct as being OK on PMs is a serious violation of the Forum Rules. The same rules apply there as on open forum.

I don't think PMing someone for an email address or phone number would amount to banned conduct.

 

[Butch00]

I understand what the Constitution says, but when you have cops that are willing to ignore it, and judges that are willing to ignore it, and lawyers that are willing to ignore it, and prosecutors that are willing to ignore it, and jailors who are willing to ignore it, and they're all willing to use force to ignore it, then it's moot to discuss it. They have all interpreted it to mean something different. The only way is to FORCE the change down their throats at that point. And the only way to do that, is to find someone who DOES have power who is willing to fight for your cause.

After making that statement do you believe the Courts you go into have anything to do with the Constitution.

 

[boyscout399]

After making that statement do you believe the Courts you go into have anything to do with the Constitution.

Only so far as the judge is willing to uphold it basically.

 

[Mike]

http://www.mainelegislature.org/legis/statutes/25/title25sec2904.html

There you go. Any public property is fair game for them to make rules on.

Why would "any public property" be subject to substantive rule making to ban gun possession under this section? That is not what is remotely contained in the link you cite to. Further, the statutory authority is limited to "routine technical rulmaking" and not substantive denial of rights.

Has any court upheld these gun ban regulations?

 

[boyscout399]

Why would "any public property" be subject to substantive rule making to ban gun possession under this section? That is not what is remotely contained in the link you cite to. Further, the statutory authority is limited to "routine technical rulmaking" and not substantive denial of rights.

Has any court upheld these gun ban regulations?

"The Commissioner of Public Safety is authorized and empowered to adopt rules subject to the approval of the Governor governing the security regarding use of all grounds maintained by the State at the capitol area or any other state-controlled locations in Augusta"

They made the rule, the rule was signed off by a governor at some point. Therefore, it's a valid rule. I don't see how that's difficult to understand. The rule is simple, you cannot use the grounds if you have a gun. That's a rule governing the use of grounds... It's a rule governing the security of those grounds... The rule was adopted in a legal fashion...

Work to get the rule changed. Work to take away their rule making power in this regard, but arguing that the rule is invalid is a bad argument... Again, I point to the fact that if you ignore the rule, you WILL get arrested, the judge WILL find you guilty, and you WILL go to jail.

 

[Grapeshot]

Originally Posted by Butch00
--snip--. I don't want to get banned.
If anyone is interested PM me

......even hinting at banned conduct as being OK on PMs is a serious violation of the Forum Rules. The same rules apply there as on open forum.

I don't think PMing someone for an email address or phone number would amount to banned conduct.

You made the connection. What you do off the forum and off PM is not my business.......except as your conduct reflects on OCDO.

I agree that this is off topic. It will stop here.

 

[KBCraig]

Like I said earlier. As long as theres cops enforcing, judges upholding, and jailers jailing you for it, then it doesn't matter what the Constitution says.

+1

"But whether the Constitution really be one thing, or another, this much is certain — that it has either authorized such a government as we have had, or has been powerless to prevent it."
~Lysander Spooner, "No Treason"

 

[SPOProds]

"The Commissioner of Public Safety is authorized and empowered to adopt rules subject to the approval of the Governor governing the security regarding use of all grounds maintained by the State at the capitol area or any other state-controlled locations in Augusta"

They made the rule, the rule was signed off by a governor at some point. Therefore, it's a valid rule. I don't see how that's difficult to understand. The rule is simple, you cannot use the grounds if you have a gun. That's a rule governing the use of grounds... It's a rule governing the security of those grounds... The rule was adopted in a legal fashion...

Work to get the rule changed. Work to take away their rule making power in this regard, but arguing that the rule is invalid is a bad argument... Again, I point to the fact that if you ignore the rule, you WILL get arrested, the judge WILL find you guilty, and you WILL go to jail.

I agree with you. However, arrest and federal appeal if necessary. Then federal suit may be the only way to fight it.

 

[boyscout399]

I agree with you. However, arrest and federal appeal if necessary. Then federal suit may be the only way to fight it.

And are you willing to spend a time in jail while that appeal goes through? You're not even guaranteed to win that appeal. In fact, I'd say you're probably UNlikely to win it until a decision from the Supreme Court solidifies the right to bear arms. Heller did leave room for a future ruling to say "time and place" restrictions could be upheld and included government buildings as a theoretical example.

 

[Mike]

"The Commissioner of Public Safety is authorized and empowered to adopt rules subject to the approval of the Governor governing the security regarding use of all grounds maintained by the State at the capitol area or any other state-controlled locations in Augusta"

They made the rule, the rule was signed off by a governor at some point. Therefore, it's a valid rule. I don't see how that's difficult to understand. The rule is simple, you cannot use the grounds if you have a gun. That's a rule governing the use of grounds... It's a rule governing the security of those grounds... The rule was adopted in a legal fashion...

Work to get the rule changed. Work to take away their rule making power in this regard, but arguing that the rule is invalid is a bad argument... Again, I point to the fact that if you ignore the rule, you WILL get arrested, the judge WILL find you guilty, and you WILL go to jail.

The statutory authority is limited to "routine technical rulmaking" - the regulation overstes this liimitation; morevoer the grant of statutory power is cabined in by references to vehicle parking management etc. Taken togther the language does no so far is giving the Bureau carte blanche to ban all gun possession, nor can they violate the federal ann maine constitutions with an absolute ban on gun possession. These facts and reasoning provides for a very strong defense against appliction of the law, or better, a civil suit in state court to void the gun banning portions of the regulation. This is a perfect case for Maine gun groups to mount and would provide a great vehcile for litigation - a court is likley to void the regulation as beyond the Bureau's statutory grant of power in order to avoid issuing a right to keep and bear arms holding on constitutional grounds; but if it finds that the power to ban ALL guns at ALL times is provided by the statute, then it must address the federal and state constitutional issue of an absolute gun possession ban over large areas of land.

A case like this would be a great vehicle for the RKBA movement in Maine, Maine gun group(s), and attorneys wishing to get work and publicity. There may be attorney fee shifting avaiable, not sure if maine has this provisision. n any event, what are we talking about - $5-10K to get the ball rolling? Should be doable. and worst case, if the action fails, then the issue falls squarely into the lap of the legislature for action.

 

[boyscout399]

The statutory authority is limited to "routine technical rulmaking" - the regulation overstes this liimitation; morevoer the grant of statutory power is cabined in by references to vehicle parking management etc. Taken togther the language does no so far is giving the Bureau carte blanche to ban all gun possession, nor can they violate the federal ann maine constitutions with an absolute ban on gun possession. These facts and reasoning provides for a very strong defense against appliction of the law, or better, a civil suit in state court to void the gun banning portions of the regulation. This is a perfect case for Maine gun groups to mount and would provide a great vehcile for litigation - a court is likley to void the regulation as beyond the Bureau's statutory grant of power in order to avoid issuing a right to keep and bear arms holding on constitutional grounds; but if it finds that the power to ban ALL guns at ALL times is provided by the statute, then it must address the federal and state constitutional issue of an absolute gun possession ban over large areas of land.

A case like this would be a great vehicle for the RKBA movement in Maine, Maine gun group(s), and attorneys wishing to get work and publicity. There may be attorney fee shifting avaiable, not sure if maine has this provisision. n any event, what are we talking about - $5-10K to get the ball rolling? Should be doable. and worst case, if the action fails, then the issue falls squarely into the lap of the legislature for action.

I don't see where in the section it says "routine technical rulemaking." I see that it says it's empowered to make rules governing security. The state will certainly argue that a rule banning firearms is most certainly a rule governing security, and I can't see how a competent judge could determine otherwise.

 

[SPOProds]

And are you willing to spend a time in jail while that appeal goes through? You're not even guaranteed to win that appeal. In fact, I'd say you're probably UNlikely to win it until a decision from the Supreme Court solidifies the right to bear arms. Heller did leave room for a future ruling to say "time and place" restrictions could be upheld and included government buildings as a theoretical example.

No, I'm not and like I previously stated I don't have the money to fight it, I wish I did. Moving to Maine with no job and only savings has left me with only time to offer.

Also, my point isn't against the government buildings. My concern is the public access streets, business patrons and residents in the "Capitol Area", that isn't actually owned by the State.

 

[boyscout399]

No, I'm not and like I previously stated I don't have the money to fight it, I wish I did. Moving to Maine with no job and only savings has left me with only time to offer.

Also, my point isn't against the government buildings. My concern is the public access streets, business patrons and residents in the "Capitol Area", that isn't actually owned by the State.

I believe their rule only applies to state owned buildings, parks, and grounds.

 

[SPOProds]

I believe their rule only applies to state owned buildings, parks, and grounds.

I posted the definition of the "Capitol Area" earlier in the thread. Which is an entire area not just State owned property. I did the boundary tracing in google maps it encompasses much more than just state property

 

[boyscout399]

I posted the definition of the "Capitol Area" earlier in the thread. Which is an entire area not just State owned property. I did the boundary tracing in google maps it encompasses much more than just state property

Yes the capitol area encompasses all that space, but the prohibition on weapons by the Capitol Police only applies to state owned buildings and land.

A. "Capitol Area" when used in these regulations shall mean the land, building, personal property and facilities owned, leased, occupied, used or possessed by the State in or at:

(1) The Capitol Area described in I M.R.S.A., Section 814,

 

[Mike]

I don't see where in the section it says "routine technical rulemaking."

" . . . Rules adopted pursuant to this subsection are routine technical rules as described in Title 5, chapter 375, subchapter 2-A.
[ 2009, c. 317, Pt. E, §12 (AMD) .]"

Now look at what that restriction means in the context of rulemaking under Maine law:

"§8071. Legislative review of certain agency rules
Except as otherwise provided in this subchapter, rules adopted pursuant to rule-making authorization delegated to an agency after January 1, 1996 are subject to the procedures of this subchapter and subchapter II. [1995, c. 463, §2 (NEW).]

1. Legislative action. All new rules authorized to be adopted by delegation of legislative authority that is enacted after January 1, 1996, including new rules authorized by amendment of provisions of laws in effect on that date, must be assigned by the Legislature to one of 2 categories and subject to the appropriate level of rule-making procedures as provided in this subchapter. The Legislature shall assign the category and level of review to all rules at the time it enacts the authorizing legislation. The Legislature may assign different categories and levels of review to different types of rules authorized by the same legislation.
[ 1995, c. 574, §1 (AMD) .]
2. Categories of rules. There are 2 categories of rules authorized for adoption after January 1, 1996.
A. Routine technical rules are procedural rules that **establish standards of practice or procedure for the conduct of business with or before an agency and any other rules that are not major substantive rules** as defined in paragraph B. Routine technical rules include, but are not limited to, forms prescribed by an agency; they do not include fees established by an agency except fees established or amended by agency rule that are below a cap or within a range established by statute. [1995, c. 463, §2 (NEW).]
B. Major substantive rules are rules that, in the judgment of the Legislature:
(1) Require the **exercise of significant agency discretion or interpretation** in drafting; or
(2) Because of their **subject matter or anticipated impact**, are reasonably expected to result in a significant increase in the cost of doing business, a significant reduction in property values, the loss or significant reduction of government benefits or services, the imposition of state mandates on units of local government as defined in the Constitution of Maine, Article IX, Section 21, or other **serious burdens on the public** or units of local government. [1995, c. 463, §2 (NEW).]
[ 1995, c. 463, §2 (NEW) .]"

The absolute ban on gun possession imposed by the regulation is arguably an act of extra-statitorial substantative rulemaking as defined above.

Holding the regulation void on the grounds that the agency exceeded its statutory authority under Main law, or the non-delegation doctrine, gives the court an out to avoid making a holding on the Maine and federal right to bear arms challenege against the regulations absolute ban on gun carry.

So we have 3 good arguments to use in court, and they work together nicely.

 

[SPOProds]

Yes the capitol area encompasses all that space, but the prohibition on weapons by the Capitol Police only applies to state owned buildings and land.

Got it. That clarification was all that was needed. Thanks, as always a help. I read it numerous times but for some reason it didn't click.

 

[boyscout399]

" . . . Rules adopted pursuant to this subsection are routine technical rules as described in Title 5, chapter 375, subchapter 2-A.
[ 2009, c. 317, Pt. E, §12 (AMD) .]"

Now look at what that restriction means in the context of rulemaking under Maine law:

"§8071. Legislative review of certain agency rules
Except as otherwise provided in this subchapter, rules adopted pursuant to rule-making authorization delegated to an agency after January 1, 1996 are subject to the procedures of this subchapter and subchapter II. [1995, c. 463, §2 (NEW).]

1. Legislative action. All new rules authorized to be adopted by delegation of legislative authority that is enacted after January 1, 1996, including new rules authorized by amendment of provisions of laws in effect on that date, must be assigned by the Legislature to one of 2 categories and subject to the appropriate level of rule-making procedures as provided in this subchapter. The Legislature shall assign the category and level of review to all rules at the time it enacts the authorizing legislation. The Legislature may assign different categories and levels of review to different types of rules authorized by the same legislation.
[ 1995, c. 574, §1 (AMD) .]
2. Categories of rules. There are 2 categories of rules authorized for adoption after January 1, 1996.
A. Routine technical rules are procedural rules that **establish standards of practice or procedure for the conduct of business with or before an agency and any other rules that are not major substantive rules** as defined in paragraph B. Routine technical rules include, but are not limited to, forms prescribed by an agency; they do not include fees established by an agency except fees established or amended by agency rule that are below a cap or within a range established by statute. [1995, c. 463, §2 (NEW).]
B. Major substantive rules are rules that, in the judgment of the Legislature:
(1) Require the **exercise of significant agency discretion or interpretation** in drafting; or
(2) Because of their **subject matter or anticipated impact**, are reasonably expected to result in a significant increase in the cost of doing business, a significant reduction in property values, the loss or significant reduction of government benefits or services, the imposition of state mandates on units of local government as defined in the Constitution of Maine, Article IX, Section 21, or other **serious burdens on the public** or units of local government. [1995, c. 463, §2 (NEW).]
[ 1995, c. 463, §2 (NEW) .]"

The absolute ban on gun possession imposed by the regulation is arguably an act of extra-statitorial substantative rulemaking as defined above.

Holding the regulation void on the grounds that the agency exceeded its statutory authority under Main law, or the non-delegation doctrine, gives the court an out to avoid making a holding on the Maine and federal right to bear arms challenege against the regulations absolute ban on gun carry.

So we have 3 good arguments to use in court, and they work together nicely.

Since the ban only applies to state owned properties, how would you argue that it would fall under "Major substantive rules"? It doesn't increase cost, and a ban that only applies to state owned buildings doesn't put a "serious burden on the public" or a reduction in property value.

 

[Mike]

Since the ban only applies to state owned properties, how would you argue that it would fall under "Major substantive rules"? It doesn't increase cost, and a ban that only applies to state owned buildings doesn't put a "serious burden on the public" or a reduction in property value.

The burden is on the regulation to fall within the limited statutory scope; it is a serious burden on the public to completely ban the right to bear arms on state property which is othersie generally open to the public - and i think this is more tan state buildings but parking lots, certain streets and alleys, sidewalks, at least one airport, etc.; moreover, the act of banning gun carry itslef is an exercise a act of "significant agency discretion" and not allowed under the grant of statutory power.

And remember, courts look to ways to avoid holdings on constitutional grounds, especially when it comes to guns

 

[boyscout399]

The burden is on the regulation to fall within the limited statutory scope; it is a serious burden on the public to completely ban the right to bear arms on state property which is othersie generally open to the public - and i think this is more tan state buildings but parking lots, certain streets and alleys, sidewalks, at least one airport, etc.; moreover, the act of banning gun carry itslef is an exercise a act of "significant agency discretion" and not allowed under the grant of statutory power.

And remember, courts look to ways to avoid holdings on constitutional grounds, especially when it comes to guns

Do you want to be the test case?