Friday, November 06, 2020

Michigan Court of Appeals Affirms Slap-Down of Ban on Open Carry as Beyond the Authority of Jocelyn Benson


 Image from lawsuit, public document, cropped and scaled by Dean Weingarten

The saga of the Michigan Secretary of State, radical democrat, Jocelyn Benson's attempt to ban open carry at the Michigan polling places, without the legal authority to do so, continues. After the edict was declared on 16 October by Benson, Tom Lambert and a number of groups supporting the right to arms filed a lawsuit to stop the illegal usurpation of power on 22 October, 2020. 

Michigan Judge Christopher Murray, of the Michigan Court of Claims, struck down the ban on open carry as exceeding the authority of Secretary Benson, in part, because she did not follow the necessary procedure.

The Attorney General, radical Democrat Dana Nessel, immediately appealed the decision to the Michigan Court of Appeals. The Court of Appeals upheld the decision by the lower court. From the

The Michigan Court of Appeals has denied Attorney General Dana Nessel's appeal of a lower court decision that halted Secretary of State Jocelyn Benson's open carry ban at polling places, but Nessel immediately appealed to the Michigan Supreme Court.

While the briefs filed in the case raise "legitimate concerns," the Michigan Legislature already has given the state "important and necessary tools to prevent voter intimidation," according to the unanimous decision by a three-judge panel.

There already is a law that bans voter intimidation and another that prohibits the brandishing of a firearm in public, the judges noted.

The wording of the ruling is short and clear. The judge emphasizes the legislature has already made voter intimidation and the brandishing of firearms in public illegal. From the ruling by Presiding Judge Patrick Meter:

Voter intimidation is-and remains-illegal under current Michgan law. MCL 168.932(a), 168.744(1); see also 18 USC 594. Second, brandishing a firearm in public is-and remains-illegal under current Michigan law. MCL 750.234(e). Accordingly, anyone who intimidates a voter in Michigan by brandishing a firearm (or, for that matter, threatening with a knife, baseball bat, fist, or otherwise menacing behavior) is committing a felony under existing law, and that law is-and remains-enforceable by our Executive branch as well as local law enforcement.
Benson, who was aided in her campaign bid in 2018 by money from the George Soros funded SOS project. She is one of several Secretary of State officers across the country with radical leftist roots.

The Attorney General, Nessel, has vowed to immediately appeal the decision to the Michigan Supreme Court. The Michigan Supreme Court recently struck down Governor Gretchen Whitmer's edicts on emergency lockdowns as illegitimate

It is uncertain if the Michigan Supreme Court will hear the appeal before the election on 3 November, 2020. 

The legal authority of the state to ban the brandishing of firearms in public would likely be upheld by the Supreme Court of the United States (SCOTUS), under the longstanding law banning the carrying of firearms in such a way as to terrify the population.  An important distinction is made between brandishing and carrying. 

Carrying weapons is constitutionally protected. Thus "brandishing" and "carrying" can not be equivalent. People can carry weapons without brandishing them.  The vast majority of the time, people carrying weapons are *not* brandishing them.

Nor can the mere attitude of a person who is terrified of weapons generally be used to define carrying as brandishing. If that were so, any person could alter the law at anytime, merely by claiming they were terrified at the mere presence of a weapon. 

Thus laws would and could not be general and understood by any person. Someone might be perfectly legal one moment, and violating the law the next moment, without any change or action on their part. The law would depend on the subjective attitude of other people.  Such power would not be law, but mere personal caprice.  

Such a state of affairs would not be the rule of law. It would be the rule of subjective personal caprice, exactly the opposite of the rule of law.

©2020 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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ScienceABC123 said...

Clearly the Michigan Court of Appeals has no idea what the word "brandishing" means.

Anonymous said...

Hello Dean. I don't know if you are interested in these types of firearms news stories but I will leave you the links and leave it up to you if you want to note these in your blog. Both of these stories are in my area and involve accidental shooting.

Thanks for your time.