Summary Judgement: Federal Court: A right to carry openly Outside the Home
Last month, a Colorado federal district court struck down a U.S. Postal Service regulation barring a rural man from possessing a firearm in his car when he parks in the Post Office parking lot to retrieve and send his mail. The news made headlines across the country as one of the first favorable federal court rulings after President Obama declared war on the Second Amendment in the wake of the Connecticut tragedy.
Tab Bonidy drives miles from his home to Avon to collect his mail, but because he regularly carries a concealed handgun pursuant to Colorado law, he is barred by a Postal Service regulation, adopted in 1972, from parking in the Post Office parking lot and entering the Post Office itself. In 2010, after landmark rulings by the Supreme Court of the United States in District of Columbia v. Heller and McDonald v. City of Chicago, Bonidy asked the Postal Service if he would be prosecuted if he carried his firearm into the Post Office or locked it in his vehicle in the Post Office parking lot. The Postal Service’s top lawyer wrote back, “carrying firearms, openly or concealed, onto any real property under the charge and control of the Postal Service” is still barred by Postal Service regulation.
On two separate occasions the district court denied attempts by the U.S. Department of Justice to dismiss Bonidy’s lawsuit and during oral arguments sharply challenged the federal lawyer’s assertion that the Avon Post Office parking lot is a “sensitive” place that allows the Postal Service to curtail Second Amendment rights. Then, last month during oral arguments on cross motions for summary judgment, the judge upbraided the federal lawyer thusly, “there’s a difference between all of this broad, general restriction and an individual situation.... You know, this is more of what we are seeing[;] regulatory authority prevails, period. It isn’t going to happen [here].”
Days later the district court issued its ruling. Because it was bound by recent precedent from the U.S. Court of Appeals for the Tenth Circuit regarding the right to carry a concealed weapon outside the home, the district court addressed whether the Second Amendment protects the right to carry openly outside the home. The district court concluded that the Supreme Court in Heller upheld a constitutional right to carry firearms openly outside the home for self-defense subject only to reasonable public safety related restrictions. Just what are those restrictions?
As to the interior of the Avon Post Office, the district court found it a “sensitive” place and thus the Postal Service’s regulation presumptively valid there. The matter of the public parking lot, however, is another story. Government ownership alone is not sufficient, held the district court, to restrict constitutional liberties. The lot is not a government building, nor is it a place where government business is conducted, nor is there meaningful limitation on those who enter it; in fact, the Postal Service lot is little different from other nearby public lots.
Therefore, the Postal Service justifies its regulation with “a history of firearm violence on postal property based on a study of workplace violence [on the basis of which it] makes broad, conclusory statements...” That rationale, which involves “administrative convenience and saving expenses,” might be sufficient, held the district court, except that the case involves Bonidy’s right to protect himself, “the core concern of the Second Amendment.”
“In sum,” ended the district court, “openly carrying a firearm outside the home is a liberty protected by the Second Amendment.... The parking lot adjacent to the building is not a sensitive place and the [Postal Service] failed to show that an absolute ban on firearms is substantially related to [its] important public safety objective.” Thus, it is “unconstitutional.”
The expected appeal by federal lawyers is due in early September at the Tenth Circuit, the next stop in a case likely to reach the Supreme Court of the United States.
Mr. Pendley, a Wyoming attorney, is President and Chief Legal Officer of Mountain States Legal Foundation and a regular columnist in Loggers World.
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