Friday, November 25, 2016

How President Trump can Defang Federal Gun Free Zones

President elect Trump has promised to do away with Gun Free Zones. Because of multitudinous, overlapping, Federal, state, and local statutes, ordinances and regulations, President Trump will not be able to eliminate all Gun Free Zones immediately. He can, unilaterally, do away with enormous swaths of them from the oval office, with a pen and a phone.

The key is to understand how these zones have been constructed.  The Federal zones consist of three large pieces and a multitude of smaller chunks. The three large pieces can be eliminated by executive order and findings from the executive branch.

The three large pieces are:
  • Military bases and installations.
  • Property managed by the Army Corps of Engineers
  • Post Office properties and other Federal properties and Buildings
President Trump's executive actions will rest on a solid basis of law. The fundamental base is the Second Amendment.

The next layer is the interpretation of the Second Amendment by the Supreme Court in the Heller and McDonald decisions.

The third layer is precedent set in the Gun Free School Zone Act of 1995.

A key finding of the Heller and McDonald decisions is that individual bearing of arms for purposes of confrontation is protected by the Second Amendment and is a lawful purpose for carrying arms.

The Gun Free School Zone Act of 1995 reinforces this understanding by exempting people who have valid carry permits from the penalties of the Act.

The Law Enforcement Officers Safety Act (LEOSA) makes provisions for active duty and retired law enforcement officers to carry in most of the nation.

Most Federal gun free zones are based on interpretation of 18 U.S. Code § 930 - Possession of firearms and dangerous weapons in Federal facilities.

The relevant paragraphs are (a) and (d).
(a) Except as provided in subsection (d), whoever knowingly possesses or causes to be present a firearm or other dangerous weapon in a Federal facility (other than a Federal court facility), or attempts to do so, shall be fined under this title or imprisoned not more than 1 year, or both.

(d) Subsection (a) shall not apply to—
(1) the lawful performance of official duties by an officer, agent, or employee of the United States, a State, or a political subdivision thereof, who is authorized by law to engage in or supervise the prevention, detection, investigation, or prosecution of any violation of law;

(2) the possession of a firearm or other dangerous weapon by a Federal official or a member of the Armed Forces if such possession is authorized by law; or

(3) the lawful carrying of firearms or other dangerous weapons in a Federal facility incident to hunting or other lawful purposes.
President Trump can and should issue, or work with the Attorney General to have issued, a finding that the bearing of arms with a valid carry permit or under LEOSA, is a lawful purpose under paragraph (3).

This is a commonsense and clear finding that 90% of the nation would immediately accept as valid. It merely reinforces the Heller and McDonald decisions. It enforces existing Federal law. Very few people would argue that carrying a weapon with a valid carry permit, for defense of self and others, is not a lawful purpose.

It eliminates most of the gun free zones of the Post Office and other Federal properties and buildings.  It removes a layer of resistance from military gun free zones and Army Corps of Engineer lands.

For Military installations, draft a DoD Directive to this effect:

As of (effective date) commanders shall allow persons with valid carry permits to access the same areas of military installations and lands under military control, that are available to unescorted access by armed members of local law enforcement agencies.

This takes into account sensitive areas, areas that require security clearances, and any other areas where there is a legitimate need to exclude armed members of the public, such as prisons.

The record is clear, from a number of states, that people with valid carry permits are more law-abiding than police officers.  The directive could state this fact as a valid reason for the change in policy. It could also cite the Supreme Court decisions in the Heller and McDonald cases.

A separate DoD directive should be developed for active duty military members.

The Army Corps of Engineers is partly taken care of by the actions above. The Corps of Engineers has court actions ongoing in the Ninth and Eleventh circuits.  As chief executive, President Trump could direct the Army Corp of Engineers, which falls under his command, to negotiate a Court sanctioned settlement. The settlement would permanently prohibit the Corps of Engineers from violating the Second Amendment. Such Court sanctioned agreements have long been used to create law without congressional approval, law that is impossible to remove by regulatory means. President Trump could find, with an executive order, that such a settlement would be followed by the Corp of Engineers in all other Circuits.

If Court actions were directed against other federal agencies under 18 U.S. Code § 930 (d) (3), President Trump could then direct negotiated settlements to the same effect as with the Army Corps of Engineers, for the entire Federal Government. Buildings directly controlled by the legislative branch and the Federal Court system would be excepted. 

The executive actions could be done in a very short period of time. Except for the court negotiated settlements, they could be reversed by the next president.

Legislative action would be necessary to prevent that option. The executive action would be a positive spur to legislative action.

Donald Trump has championed the passage of National Reciprocity.  A National Reciprocity bill could include direction on all three of the Federal areas listed above. National Reciprocity is already highly popular and likely has the votes to pass.

If National Reciprocity does not pass before the 2018, President Trump can use it to push his agenda in the mid term elections. The necessity of legislative action would be a rallying cry to Second Amendment supporters across the country to push for the election of congressional allies.  Such a cause, which resonates with Trump supporters, could be critical for senators in 2018.

©2016 by Dean Weingarten: Permission to share is granted when this notice and link are included.

Link to Gun Watch


Anonymous said...

This article brings up the primary flaw in law today. It mentions Marbury v. Madison. what needs to be done is a very close look at that ruling and what is actually legal in that ruling. the good part is federal law is supreme and is very well documented in the constitution. the bad part of that ruling is the court by issuing the ruling Gave its self the authority to interpret the constitution and the Framers never intended for the court to have that authority. I'm currently working with another person on developing a civics course. The authority to interpret is one of the issues being covered in detail. there is nothing in the constitution that permits the court to interpret the constitution, the oath of office requires that only what is written to be what is enforced without bias or opinion. to interpret requires both bias and opinion.

Anonymous said...

There is noting in the constitution that requires any one to have a permite to exercise any guaranteed right.

Anonymous said...

You do realize there are some 63 million laws, regulations and acts on the books nation wide? If you cross the street you may be violating some law. Nobody is capable of knowing every one of the 63 million laws. the constitution requires the congress to meet at least once a year. Original intent never thought we would ever need 63 million laws. factually well over 90% of those laws are unconstitutional.

Anonymous said...

Todays news, My opinion, President Trump is shooting himself in the foot trying to be all things to all people I think in six months he will understand Caesar's statement, ye too Brute. doing so much reaching out is going to get his hand cut off by his rivals. I think he is making a really big error in not sticking to his campaign promises. Lock her up is important to the whole nation it is not a personal issue he can forgive. It is my opinion that the Clintons need to be jailed as soon as possible for decades of crimes. Not just being responsible for the deaths of four Americans what difference does it make now, four people are very dead. It should make lots of difference to their families and all Americans.