Sunday, March 19, 2017

Army Corps of Engineers Considers Reform of Second Amendment Rules

After President Trump won election in November of 2016, I explained how a Trump administration could eliminate gun free zones in the Army Corps of Engineers. One of the options to do this was with a court ordered settlement agreed to by both sides. 
Another method available to President Trump is a negotiated Court settlement. The ban on possession of weapons on land administered by the U.S. Army Corps of Engineers is being challenged in the Courts. Court cases in both the Ninth Circuit and in the Eleventh Circuit are active. A Trump administration could order the Corps of Engineers to negotiate a Court sanctioned settlement that would prohibit the Corps of Engineers from ever violating the Second Amendment again. Such Court sanctioned agreements have long been used to create law without congressional approval, law that is impossible to remove by regulatory means.
It appears that approach may be underway. From the
The 9th Circuit case was ready for oral argument on March 6. But on March 2, the Corps filed a request to remove the oral argument from the calendar and to put the case into mediation. The motion explained: “The Army Corps of Engineers is reconsidering the firearms policy challenged in this case, as well as plaintiffs’ requests for permission to carry firearms on Army Corps property. This reconsideration has the potential to fully resolve plaintiffs’ objections.”
This does not show the Trump administration is behind this change of heart on the part of the Corps. But it seems likely a reversal of policy that occurs a couple of months after a change of administration might be related to that change. Mediation at the Ninth would allow both parties to agree on a settlement. Then the Court would approve of the agreement.  Most mediation would be considered certain once both parties approve. But in a politically charged circuit such as the Ninth, such an approach may not be guaranteed.  From
For over twenty years, the Ninth Circuit Court of Appeals has operated a court mediation and settlement program. During that time, experienced and skilled circuit mediators have worked cooperatively with attorneys and their clients to resolve a variety of disputes. The disputes mediated range from the most basic contract and tort actions to the most complex cases involving important issues of public policy. The mediators have even successfully resolved death penalty cases. No case is too big or too small for mediation in the court's program.

The court offers this service, at no cost, because it helps resolve disputes quickly and efficiently and can often provide a more satisfactory result than can be achieved through continued litigation. Each year the mediation program facilitates the resolution of hundreds of appeals.
The Ninth Circuit claims that what goes on in mediation is strictly confidential, and that mediators are shielded from the rest of the court. But what if the Court abhors the result of a mediation process? What if the Court finds the results of a mediation involves fulfilling a campaign promise of a President that the Court finds ideologically distasteful? Would the Court then approve of such a settlement?

We may find out. I do not believe the court is bound by law to approve of settlements reached during mediation. Courts might find a settlement violates law or the Constitution, though I am not aware of such a case. Legal experts, feel free to inform us.

Refusing to order a settlement agreed to by both parties would be unusual. But we live in unusual times. Who would have thought that a Ninth Circuit Court would order that a simple, temporary, executive order on vetting visitors from war torn lands, be halted pending judicial review? The lines between policy making and political review in the courts seem thin indeed.

In the case of Elizabeth Nesbitt, et al v. U.S. Army Corps of Engineers, et al,
we may find out if that line will be crossed when it comes to the Second Amendment and the Corps of Engineers.

update: The sister case in the 11th Circuit, GeorgiaCarry.Org, Inc, et al v. U.S. Army Corps of Engineers, et al, has also been sent to mediation, as of March 7th, 2017, according to   The question is, are both cases being mediated at the same time, and will the results be national? It seems likely.

©2017 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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Anonymous said...

I think it has been proven the ninth circuit is full of activist judges. far too many judges need to be removed from our legal system. they only have 26 words to enforce and too many just can't handle that. read the constitution there is no written authority for the courts to interpret law. What their oath of office requires is to enforce exactly what is written without opinion or bias.

Anonymous said...

When the second amendment states citizens have the right to keep and bear arms, that is it in a nut shell, cut and dried, no other words need to be considered. Shall not be infringed is the next and only qualifier for that right. the reasons are clear , defense of self and country. In time of war who cares how much time you have been in jail if you can shoot straight to protect the nation? Vietnam made it very clear to me, being able to shoot well is far more important than who you are or what you are, the trigger on the weapon knows no color or race and could care less if you have spent any time in jail or what your crimes may have been. In history most armies were made up of criminals. protecting the sorry asses that normally would not associate with them. as soon as their asses have been saved they want to point fingers. the time it takes to pass out weapons to those willing to fight may cost a lot of lives. If they do not have to wait to be passed out it may make the difference. Members of the colonial armies brought their own weapons with them because the government did not have any armories to issue weapons from. the constitution actually does not permit a standing army, only a navy. Citizens have been required to protect themselves from the very start of this country. Congressmen used to be armed even on capitol hill. at one time and for a very long time guns were a valued gift to give. until the candy asses decided to look down on fire arms. who do those candy asses run to when they need protection, someone with a gun. they never ask for protection they demand it. I will one day probably get my self into trouble. I will always defend the helpless but the candy asses that want to tell me I am a terrible person for owning guns can look for help somewhere else. My choice to own guns and their choice is to not own guns, we will just have to wait and see who lives longer.

Anonymous said...

Personally I hate activist judges more than I hate incompetent attorneys. Activist judges are the filth of the American legal system.

Anonymous said...

Incompetent legislators are not very far down on my hate list, most of them are attorneys. Education and intelligence are two very different issues. Education is only valuable if you use it effectively. I have known people with credentials as long as my arm that I would not share my water with. I have a few credentials but none of them are in creative writing. as dumb as some people think I am I would be more than willing to let them get their friends together, ad up their IQs and see if that total matches My IQ.