The Volokh Conspiracy
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Plaintiffs challenge regulations promulgated by the Army Corp of Engineers that govern the possession of firearms on property administered by the Corps. Plaintiffs argue that the regulations violate their Second Amendment right to keep and bear arms.
The regulations govern over 700 dams—holding back more than 100 trillion gallons of water—built by the Corps, and the surrounding recreation areas that serve over 300 million visitors annually. Adopted in 1973, the regulations were intended to provide for more effective management of the lake and reservoir projects. The regulation at issue here reads as follows:
(a) The possession of loaded firearms, ammunition, loaded projectile firing devices, bows and arrows, crossbows, or other weapons is prohibited unless:
(1) In the possession of a Federal, state or local law enforcement officer;
(2) Being used for hunting or fishing as permitted under § 327.8, with devices being unloaded when transported to, from or between hunting and fishing sites;
(3) Being used at authorized shooting ranges; or
(4) Written permission has been received from the District Commander….
36 C.F.R. § 327.13. The plaintiffs' complaint alleges that this regulation violates the Second Amendment by (1) banning the possession of firearms in a tent, and (2) banning the carrying of firearms on Corps' recreation sites. The plaintiffs live in western Idaho, recreate on Corps-administered public lands where this regulation applies, and would possess a functional firearm at those recreation sites but for the Corps' active enforcement of this regulation….
The Second Amendment protects the right to carry a firearm for self-defense purposes. That right extends outside the home. Peruta, 742 F.3d at 1166 (holding that "the right to bear arms includes the right to carry an operable firearm outside the home for the lawful purpose of self-defense").
The Corps' regulation bans carrying a loaded firearm for the purpose of selfdefense. It also bans carrying an unloaded firearm along with its ammunition. At most, it would allow a person to carry an unloaded firearm so long as he was not also carrying its ammunition. An unloaded firearm is useless for self-defense purposes without its ammunition. While those who use firearms for hunting are allowed greater latitude, the regulation grants no such exemption to those carrying firearms solely for purposes of self-defense. Consequently, the regulation does impose a burden on plaintiffs' Second Amendment rights.
Under Peruta, this complete ban goes beyond merely burdening Second Amendment rights but "destroys" those rights for law-abiding citizens carrying operable firearms for the lawful purpose of self-defense. Accordingly, the Corps' regulation is unconstitutional "under any light"—that is, it is invalid no matter what degree of scrutiny is used in its evaluation.
The Corps certainly retains the right to regulate handguns on its property; the Second Amendment right is "not unlimited." … But here the Corps is attempting to ban handguns, not regulate them. The Corps justifies the ban by arguing that its parks are a "sensitive place," a phrase used by Peruta, quoting Heller, in the excerpt above. But those cases limited the "sensitive place" analysis to facilities like "schools and government buildings." In contrast, the ban imposed by the Corps applies to outdoor parks.
The Corps argues that it is entitled to be more restrictive because it is a governmental entity acting as a proprietor managing its own property. In support, the Corps cites Nordyke v King, 681 F.3d 1041 (9th Cir. 2012) (en banc), a case upholding a firearms ban on the ground that the governmental entity was acting as a proprietor to manage its property. In Nordyke, the plaintiffs challenged an Alameda County law making it a misdemeanor to possess a firearm on County property. The ban in that case was just as broad as that faced two years later in Peruta—neither law allows a lawabiding citizen to carry a gun for self-defense purposes—but Nordyke comes to the opposite result and upholds the ban.
How can the two cases be reconciled? Quite easily, as it turns out. The plaintiffs in Nordyke only challenged the Alameda County law as an effective ban on gun shows on County property because no seller could display firearms without running the risk of committing a misdemeanor. Importantly, the plaintiffs did not allege that they wanted to carry guns on county property for the purpose of defending themselves. Having to confront only that aspect of the law that burdened gun shows rather than the core Second Amendment right of self-defense, the Circuit held that the law passed muster because Alameda County was entitled to impose restrictions on gun shows on County property in its role as proprietor of its property. Moreover, despite the strict language of the law, the County had interpreted the law to loosen its restriction and allow the display of firearms.
In contrast, the plaintiffs in the present case do allege that their core right of selfdefense is infringed, and the Corps has not interpreted its regulation to impose something less than its language conveys. Thus, Nordyke offers little guidance here.
The Court recognizes that a District Court in the Eleventh Circuit has evaluated the same Corps' regulation and concluded, in resolving a motion for preliminary injunction, that it is unlikely the plaintiffs' challenge will succeed. GeorgiaCarry.Org, Inc. v. U.S. Army Corps of Engineers, 2014 WL 4059375 (N.D.Ga. Aug. 18, 2014). That decision relied on Nordyke in applying an intermediate level of scrutiny and finding that the regulation passed muster. This Court, however, is bound by Peruta, as discussed above, and finds Nordyke distinguishable. Thus, the Court declines to follow the analysis of GeorgiaCarry.Org.
The Corps argues that its recreation sites are public venues where large numbers of people congregate, making it imperative that firearms be tightly regulated. The Corps also points out that the sites contain dams and power generation facilities that require heightened protection, especially given homeland security threats….
The Corps undoubtedly has a substantial interest in "providing the public with safe and healthful recreational opportunities while protecting and enhancing [its] resources." About 90% of the lakes that support Corps' projects are located near metropolitan areas. It follows that most of these facilities have a "high density of use." This density leads to conflicts caused by alcohol consumption, overcrowded facilities, visitors' preference for different types of music played at different sound levels, and the relative loudness of visitors' conversations.
Based on surveys conducted some twenty years ago, Corps Park Rangers often found themselves in dangerous situations, and were assaulted by visitors once every six days. The Corps has concluded that "the presence of a loaded firearm could far more quickly escalate such tension between visitors from a minor disagreement to a significant threat to public safety involving the potential use of deadly force by a visitor against another visitor or unarmed Corps Park Ranger." The danger to Corps Park Rangers is especially acute because Congress has not authorized them to carry firearms.
The Corps cites these considerations to support the ban imposed by its regulation. But Peruta and Heller rejected that line of argument: "We are well aware that, in the judgment of many governments, the safest sort of firearm-carrying regime is one which restricts the privilege to law enforcement with only narrow exceptions. Nonetheless, the enshrinement of constitutional rights necessarily takes certain policy choices off the table …." Peruta, 742 F.3d at 1178.
The regulation banning the use of handguns on Corps' property by law-abiding citizens for self-defense purposes violates the Second Amendment…. The plaintiffs are therefore entitled to a declaratory judgment that 36 C.F.R. § 327.13 violates the Second Amendment, and an injunction enjoining its enforcement in Idaho. The injunction is limited to Idaho because its scope is dictated by the allegations of the two named plaintiffs—Elizabeth Morris and Alan Baker.
It will be interesting to see what the Ninth Circuit will do with the inevitable appeal. Thanks to Charles Nichols for the pointer, and congratulations to the Mountain States Legal Foundation, which represents Ms. Morris.