Michigan Polling Place Open Carry Ban Challenged

MCRGO to Challenge Open Carry Ban at Polls

On Friday, Michigan Secretary of State Jocelyn Benson sent guidance to local election officials in an attempt to ban the open carry of firearms within 100 feet of polling places citing fears of voter intimidation. She ordered election inspectors to post signage providing notice of this new, purported regulation inside polling places and at building entrances. The ban occurred two weeks before the upcoming general election. It came as a surprise to local officials who were not consulted. Several counties have since indicated they will not enforce Benson’s ban.

Benson also said that “Concealed carry of a firearm is prohibited in any building that already prohibits concealed carry unless an individual is authorized by the building to do so.” Putting aside the ridiculous image of a talking building, this statement is in conflict with the legal belief of a number of county prosecutors that schools or churches used for polling locations are polling locations on Election Day and subsequently not subject to concealed pistol free zone restrictions in MCL 28.425o during the hours an election is taking place. Because the issue of concealed carry at a church or school serving as a polling place has not yet been tested in court, many CPL holders who vote in these locations opt to open carry instead. State law and Benson’s order do not impact concealed carry at polling locations that are not concealed pistol free zones such as township halls or local public libraries.

There is nothing in Michigan statutory law or the Michigan Constitution that gives Benson the authority to issue such an order. In fact, Mich. Const. Article IV, § 2 states: “(2) Except as otherwise provided in this constitution or in the constitution or laws of the United States the legislature shall enact laws to regulate the time, place and manner of all nominations and elections, to preserve the purity of elections, to preserve the secrecy of the ballot, to guard against abuses of the elective franchise, and to provide for a system of voter registration and absentee voting.” This attempt at an order by the Secretary of State shows a growing trend by the Executive Branch to rule by fiat, aggravating already heightened tensions this year due to COVID-19, social unrest, and election year political turmoil. With regard to Benson’s order, WHMI reports Livingston County Sheriff Mike Murphy saying, “she just threw gas on an ember.

Robert Stevenson, executive director of the Michigan Association of Chiefs of Police, said he’s already heard from chiefs concerned that Benson’s directive may put them in an election day showdown over gun rights. “Michigan is an open-carry state,” Stevenson said. “It’s been recognized you can open carry within governmental facilities like the state capitol and at council meetings. That’s well accepted and recognized. So her order would apparently conflict with that, because many polling places are in exactly those kind of venues.” He added: “Our police chiefs want to follow the law. We don’t want to get in the middle of a political argument.” (Source: Bridge Magazine)

This weekend, in an emergency special meeting, MCRGO‘s Board of Directors approved the organization’s participation in a lawsuit against Michigan Secretary of State Benson in order to stop enforcement of her unlawful order banning guns in polling places. MCRGO anticipates being joined by several other plaintiffs in the suit.

What Benson is attempting is extremely dangerous to self-defense rights in Michigan as it conspires to define the mere presence of a holstered firearm as intimidation. If she is successful, we can expect the same mechanism to be tried against open carry in general, hunters, people loading guns into vehicles, etc. Benson’s order is in itself an act of voter suppression in that it discourages vulnerable people in high-crime areas from voting. It is targeted voter harassment of responsible gun owners who understand that violent crime can occur anywhere and that gun bans do not deter criminal intent.

The above from MCRGO is a classic example of anti-gunners proposing something that “sounds good” on the surface, however falls apart when examined legally.

No Open Carry at the Polls in Order to Prevent ‘Voter Intimidation’ sounds reasonable until we look at the legal standings.

Firstly, the Secretary of State does not have the authority to override Michigan law just because she feels like capitalizing on the recent terror plot and tying it to the larger protest during the summer. To say nothing of any active act of interference is highly illegal and should result in arrest and prosecution, inventing a passive crime of interference that is contrary to Michigan law is unnecessary and inflammatory.

Michigan Sheriffs and Municipal Departments must now contend with a possible increase in firearms at polls as contrarian humanity takes on a Governor and Secretary of State scene as highly partisan and hostile to their opponents, ready to sign orders and take actions regardless of their authority to do so.

Guns at polling places in Michigan is an area that hasn’t been borne out in court. There has been no ‘open carrier’ or a concealed carrier tried for having their firearm with them at a polling location. Opinions across the state vary on whether or not polling places that are traditional GFZ’s remain GFZ’s during a vote or not, nothing has been determined by the courts.

Secondly, and most concerning, is the legal precedent set by the Secretary of State’s order. That the mere presence of a firearm, openly carried, represents intimidation. Nothing else. No verbal engagement, no harassing posturing or lingering at a voting location, no other overt observable method of brandishing a firearm.

The Secretary of State has, without the legislature (you know, the lawmakers), declared a legal act that is not brandishing under any other circumstances to be illegal brandishing at a polling place. Which then begs the line of questions that, if open carry is intimidation, aka brandishing, at a polling place then it is brandishing everywhere.

Brandishing is not circumstantial, it is an overt act of intimidation and coercion that intimates a person has a firearm and is going to use it. The police officer with their hand on their service weapon during a traffic stop is brandishing, legally in that instance, but is brandishing none the less. A private security guard who places their hand on a pistol or other less lethal deterrent like OC spray is brandishing the use of the device, legally probably, but they are still brandishing.

In Michigan, brandishing is illegal under any circumstance where lethal use of force is unreasonable. Basically, if you can brandish the firearm legally you can draw and shoot the firearm legally. There is no separate legal space for use of force when it comes to brandishing, it is lethal force. Law Enforcement is granted a little greater leeway on brandishing because of the nature of their job and the fact the standard uniformed officer is default open carrying, but their sidearm is always (legally speaking) lethal force. They are also open to liability for improper or wrongful use of force, including intimating they will draw their sidearm, in ways the average citizen is not. It is a complex balancing act that most people who comment on the topic have very little knowledge of.

Apparently this includes the Secretary of State of Michigan.

On a personal note..

Imagine being so weak in your conviction to vote that, despite having the option to vote remotely (by mail) shoved in your face from every possible media outlet imaginable that you believe ‘voter intimidation’ at polling places by individuals who are armed, just armed and nothing else, would stop you from voting.

Imagine standing or sitting there and using that as your argument for not casting a ballot… How pathetic a citizen you must be to feel that someone armed in the United States who is also just voting suppresses your vote. Imagine taking that argument to someone in Iraq who a few years back voted in their first election where literal Jihadist militias were ready and willing to kill voters. Where that violence is still real.

Imagine a foiled plot from a bunch of dunderheads making you believe the situation here in the US is equivalent to that Iraqi election so that the Secretary of State, who has know authority to do so, bans openly carried firearms at polling places. Imagine being so naïve that you believe that order would stop a terrorist who actually wanted to suppress the vote through violence?

Imagine a fear of the existence of weapons being the reason you don’t cast a ballot…

The SoS decision is so vapidly unimaginative it only plays to the lowest common denominator of an anti-gun base, those who have put no critical thinking and only emotive intent behind their arguments. There are so many straw men here I thought it was an outdoor Halloween attraction, not a government office.

Keith Finch
Keith is the Editor-in-Chief of GAT Marketing Agency, Inc. editor@gatdaily.com A USMC Infantry Veteran and Small Arms and Artillery Technician, Keith covers the evolving training and technology from across the shooting industry. A Certified Instructor since 2009, he has taught concealed weapons courses in the West Michigan area in the years since and continues to pursue training and teaching opportunities as they arise.