Guns

Second Amendment Doesn't Protect Gun Possession in Capitol Parking Lot

So the D.C. Circuit held today.

|The Volokh Conspiracy |

From U.S. v. Class, written by Judge Thomas Griffith and joined by Judges Davis Sentelle and Sri Srinivasan:

The Supreme Court has been careful to note that "longstanding prohibitions" like "laws forbidding the carrying of firearms in sensitive places such as schools and government buildings" remain "presumptively lawful." Heller I, 554 U.S. at 626, 627 n.26…. [T]he same security interests which permit regulation of firearms "in" government buildings permit regulation of firearms on the property surrounding those buildings as well…

First, though it is open to the public, the Maryland Avenue parking lot may be used during working hours only by Capitol employees with a permit. This makes the area a potential stalking ground for anyone wishing to attack congressional staff and disrupt the operations of Congress. The operation of the national legislature depends not only on the ability of members of Congress and their staff to conduct business inside the Capitol, but also on their ability to freely and safely travel to and from work. The same special security concerns that apply to the employees while in the Capitol apply when they walk to and from their cars on Capitol property.

Second, the lot is close to the Capitol and legislative office buildings. Class possessed a firearm less than 1,000 feet away from the entrance to the Capitol, and a block away from the Rayburn House Office Building. Although there is surely some outer bound on the distance Congress could extend the area of protection around the Capitol without raising Second Amendment concerns, Congress has not exceeded it here.

Finally, as the owner of the Maryland Avenue lot, the government—like private property owners—has the power to regulate conduct on its property. See [Adderley] v. Florida, 385 U.S. 39, 47 (1966) (observing in the free-speech context that the government, "no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated"); cf. Bonidy v. U.S. Postal Serv., 790 F.3d 1121, 1126 (10th Cir. 2015) (observing that when the U.S. Postal Service acts "as a proprietor rather than as a sovereign, [it] has broad discretion to govern its business operations according to the rules it deems appropriate").

Thanks to Charles Nichols for the pointer.

 

NEXT: Advice to Lawyers from a Judge

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Well, the ‘sensitive places’ nonsense was just the price of getting a majority to vote Yes, wasn’t it? I’ve yet to see a serious argument in favor of it *as applied* to places like schools, offices, and other places with prison-level security. (And even then, it should only be allowed if accompanied by a rebuttable presumption of liability for those entering; even actual prisons still have serious weapons smuggled in from time to time, and so a simple magnetometer scan at the entrance is certainly not enough to preclude the possibility that someone might need to defend themselves while on the “gun-free” premises.)

  2. Arrrrgh! My kingdom for an edit function!

    The above makes a lot more sense once you realize it was *supposed* to say, “… and other places withOUT prison-level security”!

    1. Well, if you were really offering us your kingdom, we might be able to invest in an edit function ….

      1. Your Webmaster doesn’t know how to make an edit function does he?

        1. If he were offered a kingdom, he’d learn.

          1. Geeks don’t want kingdoms, unless they’re in video games…

        2. Of course you assume its a “he”

          1. Or maybe I know he’s a “he” (though, if I didn’t, the assumption would be pretty likely to be accurate).

      2. LOL! If only you knew how small my kingdom was…

  3. Does this banning of weapons include bodyguards for congresspersons? Btw what is the penalty for a person that has a permit that goes into in one of these forbidden areas? What is the penalty for a person with an illegal gun that goes into one of these forbidden areas if they are caught?

  4. One year ago the court of appeals said, “”[I]gnorance of the law” generally does not excuse a person from criminal liability, absent the “unusual circumstance[ ]” in which the person “had no reason to believe that the act for which he was convicted was a crime, or even that it was wrongful.” Conley v. United States, 79 A.3d 270, 281 (D.C. 2013)”

    In Conley, this court reviewed, for plain error, a facial challenge of D.C. Code § 22-2511, which made it a “a felony offense for a person to be present in a motor vehicle if the person knows that the vehicle contains a firearm, even if the person has no connection to or control over the weapon and is not involved in any wrongdoing whatsoever.”

    Here, in Class, the government conceded that plain error review was not appropriate and so what did this panel do? It claims to have applied de novo review (where the burden of proof is much greater on the government) and upheld a law which should have been struck down even under plain error review.

    Kind of like all of those courts which said they were upholding a law based on Intermediate Scrutiny when, in fact, they were applying less than rational basis review.

    I’ve never been in the Capitol building. Does it still have the sword hooks which were provided for members of the public to hang their swords back in the day when members of the public routinely carried swords and anyone could walk in off the street into the Capitol building (and Whitehouse) while openly bearing arms?


  5. Finally, as the owner of the Maryland Avenue lot, the government—like private property owners—has the power to regulate conduct on its property. See [Adderley] v. Florida, 385 U.S. 39, 47 (1966) (observing in the free-speech context that the government, “no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated”); cf. Bonidy v. U.S. Postal Serv., 790 F.3d 1121, 1126 (10th Cir. 2015) (observing that when the U.S. Postal Service acts “as a proprietor rather than as a sovereign, [it] has broad discretion to govern its business operations according to the rules it deems appropriate”).”

    By that standard, the government is subject to no restrictions on its own property.

    The same argument used for the parking lot could be applied to a mile radius around it. These liberal judges need to be tried for treason and hanged.

    1. These liberal judges need to be tried for treason and hanged.

      Ah yes. The state of “conservatism” in the United States.

    2. “These liberal judges need to be tried for treason and hanged.”

      Be careful. The proprietor doesn’t like that type of language and is prepared to invoke the Volokh Conspiracy Board of Censors to . . . ah, just kidding.

      So long as you promote right-wing positions or bash the liberal-libertarian mainstream, your comments — however bigoted or violent — are welcome at the Volokh Conspiracy. To be censored, one must mock right-wingers, or criticize conservatives, or use mean words against Republicans.

      (Artie Ray Lee Wayne Jim-Bob Kirkland says ‘hey,’ everyone.)

      1. Your posts suck.

      2. ” To be censored, one must mock right-wingers, or criticize conservatives, or use mean words against Republicans.”

        If this were remotely true you would have been censored a long time ago.

        1. Is this Volokh Conspiracy’s comment susyem, or is it Reason.com’s?

          VC was stand alone, and at one time used the Disqus commentting system.
          Then VC went under the umbrella of Washington Post and everyone complained how the WaPo comment system was different from Disqus.
          Then VC moved to Reason.com under Reason.com’s comment system, where we are today.

          Reason.com is pretty much unmoderated as I can tell. It’s pretty much free-for-all commenting. That’s the only explanation for Rev Arthur L. Kirkland being here. At one time there were standards enforced by the commentary system. But I am not really sure whose standards Arthur Kirkland ran afoul of, but he likes to blame VC exclusively.

          1. General observations on comments/commenters how they may be removed.
            Blogs like VC and others may or may not have administrators or moderators who enforce the blogs’ standards on comments.
            If the blog is hosted (as VC is now hosted by Reason.com), the host may impose their standards too.
            The commenting system used by the host or blog may be designed to filter durty wirds, certain links identified as spam or copyright-violation, etc., in addition to moderation by the blog or by the blog’s host.
            Commenters may have the power to flag comments as spam or abuse (see the box in the upper right hand corner of a comment here) especially with small blogs with limited moderation.

  6. The federal law that bans possession of firearms on the capitol grounds must be the result of an oversight by Second Amendment proponents in Congress. Surely these individuals wouldn’t have voted to support any restriction on our fundamental liberty to defend ourselves just because the location in question is in their backyard.

    I urge my fellow lovers of liberty to contact their Members of Congress and demand that the Second Amendment be protected from liberals trying to seize our guns. Sure, a mentally ill person may cause a disturbance on the capitol grounds at some point, but that’s an issue to be taken-up in mental health legislation, not a reason to attack our constitutional liberties. Any encroachment on the Second Amendment is a slippery slope to an all-out ban on firearms, which is just want Democratic tyrants want.

    This requires a call to arms!

    1. Surely these individuals wouldn’t have voted to support any restriction on our fundamental liberty to defend ourselves just because the location in question is in their backyard.

      Having a real hard time figuring out if this is satire or not.

    2. Personally, I’m more surprised that Capitol Hill employees need parking. Surely all of them use D.C.’s ‘comfortable and convenient’ mass transit system instead.

  7. The basic problem with this sort of law, is that banning possession of a gun in a place effectively bans possession of a gun while traveling to and from that place. And possession of a gun while traveling is part of the basic right guaranteed by the 2nd amendment.

    The government, if it really is going to ban gun possession in a ‘sensitive’ place, ought to be providing secure firearms storage in order to not burden the right.

    “Second, the lot is close to the Capitol and legislative office buildings. Class possessed a firearm less than 1,000 feet away from the entrance to the Capitol, and a block away from the Rayburn House Office Building. Although there is surely some outer bound on the distance Congress could extend the area of protection around the Capitol without raising Second Amendment concerns, Congress has not exceeded it here.”

    The “area of protection” the court proposes as reasonable clearly encompasses a number of public streets people might travel on their way to and from non-“sensitive” locations. This makes it wildly over-inclusive.

    1. 1000 feet from a government building in DC excludes much of the city. That’s more than a block in most cases, sometimes as many as four blocks.

      A quick estimate from maps of Federal and city buildings in DC says that 2000 would be enough to ban gun possession in almost all of DC. If you included things like parks and minor memorials, you’d get the entire city with less than that.

      This ruling is certainly excessive.

      1. The problem is, the legal community has been so hostile to the 2nd amendment, for so long, that barring a determined effort to nominate pro-gun judges, you’re mostly going to get anti-gunners, often quite committed.

        Even the ones who aren’t committed anti-gunners tend to view the 2nd amendment as a kind of 2nd or 3rd class right, an anachronism best minimized.

      2. Brett, Toranth,

        Consider my proposal for a properly-sized DC, which I may have modestly offered here before.

        Looking at the map posted here: http://demo.equatoria.us/a_proper_wa_dc.png

        I would shrink the borders of the District to the red outline shown there. Basically, it would encompass Congress, the White House, the Supreme Court, and a couple other government buildings and/or tourist attractions. There would hardly be any residents outside of the president’s family, so the DC government could basically go away and Congress could resume running the District directly.

        The rest of the District would get retroceded to Maryland.

        1. I don’t know why you preface it as a modest proposal. It’s not half bad – if nothing else, it solves the awkward ‘no representation’ issue.

          1. It’s a “modest proposal” because there’s probably not enough money available to persuade Maryland to take it back.

            1. But then, who’s to say we have to *ask* Maryland? Federal supremacy, fait accompli, pretty neat, huh?

            2. Why would Maryland want DC when there’s Baltimore?

          2. Definitely, the representation problem is one of the motivations.

    2. >“The basic problem with this sort of law, is that banning possession of a gun in a place effectively bans possession of a gun while traveling to and from that place. And possession of a gun while traveling is part of the basic right guaranteed by the 2nd amendment.”

      What law or legal decision informs your theory? It hasn’t been successfully proven in court, and existing law works against you here.

      1. Are you under the impression that I’m a legal “formalist”, who believes the Constitution means, and only means, whatever the courts have ruled?

        Possession of a gun while traveling is a basic component of the right to keep and BEAR arms, whether or not the courts feel like acknowledging it.

        But, to make you happy… Justice Taney in Dred Scott v Sandford:

        “It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.

        1. In short, yes, carrying arms while traveling was an understood component of the right to keep and bear arms, recognized as such by the judiciary until they fell in love with gun control.

        2. The Heller court looked to state RKBA to inform the original understanding of the scope of RKBA. Texas for example protected the right to be armed on a journey when general carrying of arms in public was discouraged or limited.

      2. I think it was more of a common sense conclusion than a legal one. Take a city like New York, DC, San Francisco or Boston, where most inhabitants walk or take public transportation. If you don’t allow carry (or a safe place to check them) at Post Offices, on subways, in restaurants or stores that post “No Gun” signs or whatever else, you’ve effectively banned carry. At least in places where people drive, you can leave the gun in the car, but in the case at issue, that isn’t even allowed.

        1. “At least in places where people drive, you can leave the gun in the car, but in the case at issue, that isn’t even allowed.”

          Not, if as in this case, you’ll break the law by leaving your gun in your car while parked.

          1. Isn’t that what I said?

            1. Yes. Bit rushed there.

              1. 🙂

  8. This strikes me as a very difficult case. What’s basically street parking, near the capital (but not next to it, nearly a fifth of a mile away), which doesn’t have any of the prohibitions marked, for what is otherwise perfectly lawful, and would be if the car was moved a block in the other direction (for example, 3rd street SW).

    At a minimum, the street parking should be clearly marked for the prohibitions here.

  9. >“Finally, as the owner of the Maryland Avenue lot, the government—like private property owners—has the power to regulate conduct on its property. See . . . Bonidy v. U.S. Postal Serv., 790 F.3d 1121, 1126 (10th Cir. 2015) (observing that when the U.S. Postal Service acts “as a proprietor rather than as a sovereign, [it] has broad discretion to govern its business operations according to the rules it deems appropriate”).”

    This is misguided. A private owner can’t arrest someone for violating their rules. (In many jurisdictions, they need to ask the offender to leave the premises before calling for law enforcement to arrest the offender for trespassing or unlawful possession of a firearm.) Because the government can do this, it is using it’s authority as a sovereign entity—not a proprietor—to regulate conduct on its property.

    1. Yep. In my state, “No gun” signs don’t carry the force of law, so I walk right by them with my nicely holstered Glock 48.

      1. so I walk right by them with my nicely holstered Glock 48.

        So you are against the rights of property owners then? Pro-gun fanatics seem to only care about one right and say screw all other rights.

        1. The Second Amendment merely acknowledges a natural right, and says it cannot be curtailed. Not really rocket science.

          Trespass: “entering the owner’s land or property without permission” presents other questions.

          1. Arguments from libertarians commonly take the form: “The Constitution acknowledges a natural right, therefore whatever I say the natural right amounts to, that is what the Constitution guarantees.” That’s nonsense, of course.

            Whether your allusion to natural rights is operative or not, the enumerated right—and only the enumerated right—is the one the government is required by the People to enforce on your behalf. That is the deal with the devil the anti-Federalists made, against Madison’s advice. Now everyone gets to live with the deal.

            1. WTH are you talking about?

              1. Fuggedaboutit, he just loves the sound of his own voice and thinks he’s brilliant and insightful, making sense iseems to be optional.

                1. DonP, here is some sense for you. If you think you have a natural right, then let nature enforce it. If you want a right government will enforce, go for the right which the sovereign (which tells the government what to do) enumerated.

        2. If an owner of a bakery has to bake a cake for a man who likes to bugger another dude in the tuchis, then an owner of a store should have to allow guns inside.

          1. Sadly I agree, and it necessary follows from the same principle. Which is just another demonstration that they’re both wrong.

            1. Yup, I’m not going to die on my principles while the left runs roughshod over them.

              In any case, I’d never not leave a private place when asked. I don’t consider the mere act of carrying against their “wishes” to be a violation of their private property rights.

    2. But suppose the law authorizes the arrest of someone carrying a gun who refuses to leave when asked. That seems to put the private property owner on the same footing as the government.

      The only difference might be the, in some cases, there will be police on hand at the government property, but if the gun owner can leave voluntarily and avoid arrest it’s not much of a distinction.

      1. The difference is that carrying the gun on Capitol property is not merely trespassing. He’s being charged with a weapons offense.

  10. Post offices are also on the list of places where the Constitiution no longer binds. Can’t have my carry gun inside the building. Can’t carry it on the grounds as I walk about, either. Hey I can’t even sit in my car with that thing on my hip. Nor can I remove it, drop it into a small safe under the driver’s seat, then get out and take care of my bidniss inside. It is still “on” federal facility property.

    HOWEVER< I can walk allong the public sidewalk which is between the public street, and the parking lot of the post office… legally, carrying my nandgun concealed or openly. That sidewalk is a mere fifty feet from the main public entrance to the Post Office, and separated by a large single layer window between it and the main lobby of the Post Office.

    Somehow the logic that maintains I can stand on the sidewalk armed, that close to the vulnerable pubilc AND postal workers in and on the Post Office property, and that is fine and legal and dandy and good and all… but the instant I set one foot off the sidewalk and onto the pavement of the Post Office parking lot, I somehow become a crazed killer eager to perpetrate harm upon the innosents patronising the Post Office… such "logic" utterly baffles me.

    And THEN, there is nothing to prevent some miscreant from starting on that same sidewalk where I was standing, his handgun concealed inside his waistband, then proceeding to that main entrance, walking inside, drawing his weapon, and opening fire on those innocents…. the ones I am prohibited from defending when he DOES open fire…. again, that "logic" utterly escapes me.

    But such are the macinatioins of government.
    I wonder if anyone could somehow tally the total number of dollars wasted in prosecuting and defending all the various gun law cases dealing with such insane and inane aspects of "law)… I'll wager that toll runs to ten figures or more.

    And the law upon which all of that is based is SO stuipd simple… "shall not be infringed".

  11. The courts argument: “Guns are not allowed here BECAUSE GUNS”

Please to post comments

Comments are closed.