Unintended consequences are a thing. So are barely veiled agendas. The Michigan Governor and Secretary of State are no friends of firearms rights. Now, perhaps capitalizing on the recently foiled terror plot by a group of semi-anarchist antigovernmental types who got hurled under the “Booglaloo Boys” moniker, the rule the SoS put in place banning carry of firearms at Michigan polling locations has been hit with a legal challenge.
Do the groups challenging believe that every person in the polling line needs a ‘Big Iron’ on their hip?
No, that’s absurd. They have the right to do so or not at their whim. The problems exist outside of the direct context of the rule in two ways.
First, the Secretary of State can’t just do that. It is not within her delineated authority. So allowing it to go unchalleged would grant her precedent for that authority and an acceptance that she (or a future SoS) can exercise it again on a whim outside delineated powers of office.
This is a problem, a big one. But there is a second one and it is just as concerning.
By setting this rule in place the precedent is established that a firearm being present is a deliberate act of intimidation. That makes the act criminal under law, you cannot brandish (display a firearm in a forceful manner to intimidate or coerce compliance of some sort) under any circumstances short of justifiable use of lethal force of self defense. So if the open presence of a firearm is now defacto considered intimidation, it is brandishing. Brandishing is illegal. Open carry becomes illegal and anyone can claim they are intimidated just from seeing the firearm under this precedent.
“But it’s just at polling places.”
Now. For this declared rule. For which the SoS does not have the declarative authority. For now it is just at “polling locations” which the government is specifically forbidden from doing so as they are state government facilities and polling places are not legislated PFZs. There is discrepancy when the polling place is a school, which is a location open carry is permitted with a concealed carry license but is now closed off to any legal method of being armed by this rule.
This is a circumstance where it isn’t the wording or context of the rule in general, to prevent voter intimidation, that is at issue. Voters all want to prevent voter intimidation, that’s the easy sale of this rule talking.
It is the destructive and dangerous structure of the rule and who implemented it without authority to do so that is the problem. The SoS didn’t declare that anyone in possession of a firearm and engaging in voter intimidation would be charged with a serious felony by the Michigan State Police, something that is probably within her authority to declare. She didn’t say that the already illegal act of voter intimidation would get a penalty of greater severity if the perpetrator was using a firearm to further the crime or was in possession of a firearm at the time the intimidation occurred, which is also more than likely under her prerogative or these could have been announced by the Michigan Attorney General.
Both of these declaratives would have legally accomplished the same intent with vastly better structure to enforce against the act of voter intimidation and probably been supportable by legislation easily proposed and passed or already in place with no new law needed.
But no, the Secretary of State implemented the ruling in the way she did. Utilizing the plot against the governor as a bulwark against criticism of the structure of the rule and the overreach since any overreach is more tolerable if the general public can be given a ‘good enough’ reason to support it that aligns with memories of recent negative events. The rule, on the surface, appears to be structured to counter these events and sounds close enough to common sense for most people not to look at it. It’s the way to get bad rules past 101, make it sound reasonable.
S.A.F.E. Act, anyone?
In reality the rule does no such thing, it is not structured to effective accomplish its stated goal. It does increase division in the electorate for no discernable gain in safety and sets legal authoritative precedent outside legislative channels (where it belongs) while violating civil rights. It does so under the thinly veiled guise of being “reasonable in light of recent events.”
No. Adding additional security to the Governor’s person is reasonable in light of recent events, dipping into the rights of all the Michigan citizens who had nothing to do with the recent events in a hotly contested election year is not.
|Michigan Coalition for Responsible Gun Owners joined by Tom Lambert, Michigan Open Carry, Inc., and Michigan Gun Owners filed suit last Thursday in the Michigan Court of Claims to block enforcement of a directive by the Michigan Secretary of State prohibiting open carry at Michigan polling places. The plaintiffs have asked the court for emergency injunctive relief.
The Michigan Secretary of State violated the law when she issued her pronouncement ultra vires. The Administrative Procedures Act requires that all proposed new rules must go through a specific process. This process was not followed. Furthermore, Benson violated the separation of powers in Michigan’s Constitution. There are statutes in Michigan that make clear that the mere open carry of a firearm is not criminal, and that lay out where Michigan residents may or may not carry. The very least we should expect of our government officials is that they follow existing law.
The substance of the “order” depends on defining the mere presence of a visible firearm as intimidating or threatening. Leaving this unchallenged would begin a steep slide down a slippery slope for open carry anywhere. Even if you are one of the approximately 700,000 Michiganders who holds a CPL and you choose to carry concealed, you should be thankful that Michigan is an open-carry state, if only for the fact that you don’t have to worry about facing criminal charges for an inadvertent exposure of your gun. If government officials are able to choose to cater to the hyper-sensitive hopolophobes among us, think of how quickly the anti-gun, anti-rights crowd would move forward with attempts to charge any gun owner seen with a gun outdoors, whether hunting, target shooting, or simply loading them into a car for a range trip.
This order is part of a pattern of blaming and intimidating lawful gun owners and demonizing guns. We have years of experience showing clearly that so-called “gun free zones” are dangerous. This year, we’ve had ample evidence that we citizens must take responsibility for our own safety. You are your own first responder.
The case has been consolidated with Davis v. Benson, a similar complaint filed by a party from Wayne County. Defendants have until 5:00 PM on Monday, October 26 to respond to the motion for declaratory and emergency injunctive relief. Plaintiffs then have until Noon on Tuesday, October 27 to respond. Should oral arguments be necessary, the hearing will occur in the Michigan Court of Claims at 2:30 PM on Tuesday, October 27. The court will notify parties if arguments are necessary and how they will be conducted by 10 AM on Tuesday, October 27.
The Court of Claims is a court of statewide, limited jurisdiction to hear and determine all civil actions filed against the State of Michigan and its agencies. The Court of Claims is located in the Michigan Court of Appeals. Four Court of Appeals judges, including a chief judge, are assigned to the Court of Claims by the Michigan Supreme Court. Each Court of Claims case is heard by a single judge. The Court of Claims operates much like any other Michigan circuit court. In the Court of Claims, however, there is no right to a jury trial. The Court of Claims judge assigned to the case is the Honorable Christoper M. Murray.
Thanks to everyone who donated to the MCRGO Legal Fund as a result of last week’s article. Your support for this lawsuit is much appreciated! The full complaint may be found HERE.