A reader asks whether the ban on soldiers’ carrying weapons for self-defense on military bases would violate the Second Amendment. One could equally ask whether bans on carrying on military bases by non-soldiers — civilian employees, soldiers’ friends and family members, and such — would be unconstitutional.
I think the answer to both questions is “no.” The government has very broad authority, and rightly so, over the military and over military bases. Military members, for instance, have very limited Free Speech Clause rights, as do outsiders who want to speak on military bases. Naturally, such analogies go only so far, and one can certainly point to possible distinctions between Free Speech Clause rights and Second Amendment rights here. But my sense is that courts will conclude that the government has nearly unlimited powers over private gun possession by its soldiers (whether on- or off-base) and on its military bases (whether by soldiers or others), and that this is likely the correct conclusion as a matter of constitutional law. (I think banning gun carrying by soldiers on-base is generally bad policy, but here I’m speaking only about the constitutional question.)
For my thoughts on the broader question of gun possession on government property (such as public housing), see pp. 87-91 of my Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, 56 UCLA L. Rev. 1443 (2009). But that doesn’t deal with the special extra powers that the government has with regard to members of the military, or military bases.
GainesvilleGuest says:
This would be one of the easiest gun control measure to overturn, if we simply had a president who would issue the appropriate executive order.
November 12, 2009, 3:14 pmRichard Aubrey says:
Is it a 2A issue if the troops are allowed/not allowed to carry issue weapons & ammo?
November 12, 2009, 3:51 pmAs opposed to personally owned weapons.
ruuffles says:
November 12, 2009, 4:01 pmbgates says:
Save it for when that party is in the minority then raise the issue.
The issue was raised by the fact that thirteen people were murdered, and it’s reasonable to suspect that the death toll would have been less if the order weren’t in place. Too bad for you that the murders didn’t happen a year ago, so your blind partisanship could help you stumble into doing the right thing and calling for the President to rescind the order.
November 12, 2009, 4:07 pmSteve says:
Too bad for you that the murders didn’t happen a year ago, so your blind partisanship could help you stumble into doing the right thing and calling for the President to rescind the order.
What order? Did Clinton really issue an executive order to this effect? What’s the cite?
My position is that the military ought to be able to decide this sort of issue for itself. If Clinton really imposed gun control requirements on the military against its wishes, then I don’t agree with that, but I’d like to see some evidence that Clinton actually did it.
November 12, 2009, 4:20 pmPersonFromPorlock says:
Modern American enlisted members are selected for intelligence and character, rigorously trained, and see themselves as professionals, which they are. That their superiors see them as being too irresponsible to be allowed their own arms seems to me to be a hangover from the discipline needed back in the day when the Army recruited with the slogan “Three Hots and a Flop,” (i.e., three hot meals a day and a place to sleep) and got the sort of peacetime enlisted force you might expect.
That said, it’s entirely within the military’s purview to order its people not to go armed on base; but it may not be justifiable as policy any more.
November 12, 2009, 4:23 pmDavid Chesler says:
hangover from the discipline needed back in the day
Related question about back in the day: What about conscription?
You’re free to waive your First and Second Amendment rights; conscription causes you to lose quite a few of them. (Thirteenth Amendment too, but as far as I can tell that doesn’t count on the grounds that Congress couldn’t have meant what it said.)
We’re not likely to have a draft soon, even with the abuses of the reserves, but the proposed universal service programs might allow similar exceptions.
November 12, 2009, 4:30 pmThat Guy says:
I would argue that it’s bad strategy as well as bad policy (although constitutional). After witnessing the poor weapons-handling discipline of some of our solders, I’d like to require them to carry their weapons with them all day, every day. That might have cut down on the number of times I looked down a “friendly” M-16 at some idiot swinging it around a chow hall.
PS: If one of my Marines did that, he’d get snatched right off his feet.
November 12, 2009, 4:31 pmSeaDrive says:
But how many deaths did the regulations prevent? Impossible to say, I guess, but the record of violence on Ft. Hood suggests an answer greater than zero.
November 12, 2009, 4:41 pmArkady says:
Well, you know, the entire four years I spent in the Corps (way back in the day…), the only armed Marines I ever saw, apart from exercises, parades, and such, were MPs, brig chasers, and guys on some security detail. It would never have occurred to us to go about our daily duties armed. Autre temps, autre choses, I guess.
November 12, 2009, 4:56 pmTeetop says:
Long time reader and my first comment. You have a great blog, Eugene!
It should also be noted that those in uniform are also subject to “double jeopardy” as well. In a military court and civilian court, for the same offense.
November 12, 2009, 4:57 pmFederale says:
Got to disagree on the off base ownership or carrying of weapons off duty. It the 2nd Amendment is a right, therefore there has to be a very compeling reason related to the disipline of troops to violate an off duty or off base right. Even ownership and possession on base would still be a right, but obviously carrying it has a more compeling governmental interest. I cannot think of a governmental interest servded for off-duty off base ownership and carry. And with regards to the limited 1st Amendment issue, the Army certainly thought that antiwar, anti-American statements by Hasan were protected.
And there are few real restrictions on 1st Amendment activities, e.g. doing it on duty and in uniform, there is little restriction, other than insulting Members of Congress, the chain of command and the President. Even anti-war comments are OK if off duty and out of uniform. There then can be little valid rationalization of any firearms restrictions off base and off duty.
Can they restrict the books you read off duty and off base? I think not.
November 12, 2009, 5:01 pmDavid McCourt says:
I’m going to take a guess that there may be good historical reasons — or at least historical reasons — for not permitting members of the U.S. Armed Forces to go about routinely armed when on U.S. soil (as opposed to overseas bases). These are akin to the concerns that animated the Posse Comitatus Act and that generally prohibit the use of federal troops in law enforcement or order-keeping roles internally — something that distinguishes us from most European countries. Ironically, the same anti-Federalist and classical republican ideas that underly the Second Amendment — hostility to a standing army, reliance on an armed civilian populace for ultimate self defense against tyranny — may counsel against allowing professional soldiers in the national army to go about armed within the country’s borders.
Obviously, there are numerous facilities in the country at which live fire exercises, and full maneuvers with armor, artillery and airpower are conducted on domestic soil, so we’ve left the republicans far behind. And I agree that at any base of significant size there ought to be room for arming enough soldiers to provide a rapid check on any armed attacker. Soldiers need not be armed to the teeth, but they shouldn’t be lambs to the slaughter.
November 12, 2009, 5:07 pmLarryA says:
The president is the military commander in chief. Senior military officers may disagree with presidential policy, but said policy isn’t “against the military’s wishes.”
Not saying banning concealed carry on base isn’t a bad policy. Given the positive record of CHLs nationwide there’s no reason to ban the practice from any portion of a military base not secured against weapons.
Personally, that would be a good principle. Don’t ban legally carried firearms from any place where you don’t take positive steps to insure illegal carry is discouraged. (And a “No Guns” sign doesn’t accomplish that.)
Agreed. I saw a lot fewer incidents of dangerous gun handling in Vietnam, where everyone carried 24/7, than on the infrequent training exercises stateside.
November 12, 2009, 5:17 pmegd says:
You think it is constitutional for the government to ban private ownership of guns in on-base housing?
I disagree. In this case, the government is not acting out of any interest as a property owner. The ownership of guns in the home does not affect, in any way, the government’s interest in acting as a landlord in the case of on-base housing.
Likewise, private ownership off base by military personnel does not negatively affect, in any way, the government’s interest in having their soldiers combat ready. If anything, it helps the soldiers maintain their combat readiness through firearms training and familiarity with weapons.
I can’t think of any reasons that would meet even the minimum rational basis test for government outlawing private ownership of firearms, either on base (in housing) or off base (by active duty soldiers).
November 12, 2009, 5:32 pmjohn says:
God loves a Soldier, but this would be a horrid idea. I will not bother with legalistic arguments, except to say that I was a non-commissioned officer in the Army for 8 years (that means Sergeant). Military discipline does not work in the same manner as civilian, and some Privates/Airmen/Seamen don’t have the most well developed self-control. It’s far better that at the end of a long field problem or day at the motor pool the worst injuries might be black eyes as opposed to gun shots.
November 12, 2009, 5:34 pmAs an Army paralegal, I can’t tell you the number of times we had disciplinary proceedings where assault came up. I doubt a single other person on this bulletin board can say they’ve seen people chasing after one another through the motor pool with sledgehammers…on multiple occasions, after a boss told people they would have to work after 5pm or called someone’s girlfriend an impolite nickname.
From a policy standpoint, all I can say is that the number of lives that could be lost is far greater than the number of lives that might be protected against some vague threat like psychotic medical officers who are too afraid to deploy.
Joe can barely be trusted to get to formations at 6:30am, let alone carry a loaded weapon on base. They want to do it off-base when they live off-base, that’s fine. But otherwise, I really think you should defer to military authorities who understand military existence.
pc says:
Think bigger. All soldiers must be in full battle rattle, locked and loaded while on base.
November 12, 2009, 5:57 pmSteve says:
I see armed members of the military around NYC all the time, at Penn Station, the train station at Ground Zero, wherever, presumably on the way to or from somewhere. These definitely aren’t personal firearms. So I guess those rules against off-base off-duty carry must not be too strict.
November 12, 2009, 6:01 pmjohn says:
Oh, please, can I be wearing full NBC protection gear too? Especially if it’s Forts Hood, Bliss, Jackson, etc. in August?
November 12, 2009, 6:05 pmDavid McCourt says:
Roger PS, locked up if loaded on base, out.
November 12, 2009, 6:07 pmMalvolio says:
It wasn’t an executive order, just an AR, but it was Clinton’s.
Yes, “the military”, in the person of its Commander-in-Chief, makes these sorts of decisions.
But it would be unfair to blame Clinton for this (personally, I think the man should be sewn into a sack and throw out of a helicopter, just not for this) — it might have been a sensible decision in 1993, but that was before we were fighting an enemy with a propensity for bloody strikes against States-side military installations. Bush was a fool for not changing the regs in 2001 or 2002 and Obama is likely to beclown himself even more by maintaining it now.
November 12, 2009, 6:09 pmAbdul Abulbul Amir says:
True enough for the boots. However, that makes zero sense for E7 and above.
First there was the recruiter shootings in Arkansas and now Fort Hood. If our uniformed service members in this country are going to be the targets, then our officers, CWO’s and senior enlisted could easily be allowed to carry firearms with little or no risk.
November 12, 2009, 6:51 pmJohn Moore says:
I see no reason to question the military’s authority to ban firearm possession by its members – at least on duty and/or on base.
On the other hand, it might want to institute a policy similar to state CCW permits – and allow qualified soldiers to carry weapons, where qualified includes both skills and mentality.
Unfortunately, the military is very much an ass-covering organization (except, often, in battle). It is also very much a top down autocracy. Hence I doubt such a thing would happen, except perhaps in special units.
Does anyone know if spec-ops folks are exempt, and when? Folks I know where were spec-ops were the sort to have lots of firearms and other weapons all over their person and possessions.
November 12, 2009, 6:52 pmPintler says:
There is middle ground between arming no one but MPs and allowing the least responsible buck private to carry at will – for example allow/require noncoms to be armed while on duty. That would provide a significant deterrent, I think.
November 12, 2009, 7:04 pmAllan Walstad says:
The idea that personal disagreements would escalate into gun violence if soldiers carried sidearms reminds me of all those warnings from the anti-gun propagandists, each time another state adopted “shall-issue” concealed carry permits, about how traffic fender-benders would result in wild-west shootouts. Those claims were empirically falsified. Am I to understand that our military men and women are so much less stable and self-controlled than the general population, that we are to take seriously the same sort of warnings with regard to them? That’s the impression I get from a couple of the commenters here. One would have supposed that a military base would be the last sort of venue at which a lone gunman could expect to shoot dozens of defenseless people.
November 12, 2009, 7:53 pmBeth says:
Some folks seem to have some misconceptions about how the military handles weapons in domestic facilities. Those of us who have served or spent considerable time around the military tend to take this knowledge for granted.
1) Military personnel on domestic bases are usually unarmed in daily duty. The common exception to this rule is the military police, who are armed. Many bases supplement the MP presense with armed civilian police officers. This is even more common now because of the huge demand for MPs in Iraq and Afghanistan.
2) When engaging in field training, personnel will check out their personal weapons. Unless engaging in ‘live fire’ training, they often will not be issued ammunition. Immediately upon completion of the training exercise, the weapons are checked back in to the armory.
3) Commanders can, and usually do, ban personnel from possessing personal weapons while in uniform, whether on or off base.
4) Personal weapons are banned on base. People who live on base can have their weapons stored with the base MPs. Depending on the base, it can be quite a hassle to check weapons in and out. (I lived on one base where you needed to make an appointment well in advance to check out your personal weapon.) Checking a weapon out is only for use off base. You may not possess the weapon on base.
5) In addition to barracks, there are often houses and apartments on base for personnel to live with their families.
6) Some military personnel are required to live on base and do not have the option to procure off-base housing.
7) Civilian military family members, called dependents by the DOD, are subject to these same rules. It has been a long time since I lived on base. But in my rather dated experience, dependents could not check out their personal weapons. Their military family member, called a sponsor, had to check them out. If the sponsor was not available, you could not retrieve your weapon for off-base use.
8) Civilian contractors who work on the base are also subject to these rules.
November 12, 2009, 8:10 pmDan Hamilton says:
When I was in the AF 74/80 I could store my pistols and such at the armory. I could sign them in and out anytime. I had a part time job as a security guard in Mertle Beach, SC and I would go to the armory sigh out my pistol, load it pointed into the barrel(55gal) of sand, put it into my holster and leave. When I came back I would walk in and reverse the process. No problems. While I was in Korea at Osan AFB, I checked out my SS Colt Detective special and the locked ammo box it was in and would take it to Soul on a bus to fire it at the Young San Army base Rod and Gun Club.
So having guns on base wasn’t a problem. I don’t think that guns in the barrack is a good idea. The armory is a good compromise. Officers/NCOs in barrack/BOQ should be able to check out their own weapons for carry on duty or concealed off duty.
November 12, 2009, 8:20 pmDuffy Pratt says:
President Merkin Muffley: Gentlemen, you can’t fight in here! This is the War Room.
November 12, 2009, 9:20 pmThe Drill SGT says:
I’ll call that bet and raise you. Having commanded a Tank unit at Hood in the early 80′s as well as being a SGT and of course a PVT before that in Vietnam :)
However I agree with the basic premise. Keeping soldiers and live ammo separate except at specific points in time is the a good general Army policy. In my experience, ammo and weapons only intersected at three points.
- on the firing range
- on the person of an officer of NCO who was prepared to stop somebody from taking weapons from us at other times
- on MPs, on duty
Even in peace time, moving around heavy equipment, in and out is dangerous. I used to describe my tank as 52 tons of malevolent steel, trying to eat people. Tired soldiers, Carrying personal weapons at the same time they may or may not have service weapons just gets too compicated…
soldiers can do some dumb shit…
November 12, 2009, 9:44 pmRyan Waxx says:
Even MP’s on duty are not always with ammo… at least not without opening a safe, depending on the post.
On a personal note, one of my… co-workers at Walter Reed was busted by the police for shooting his personal firearm into the air in downtown D.C.
The PX was robbed three times during my stay, in all cases the attackers were armed and the soldiers (shoppers) were not. In one case they got into the post via cab, with the cabbie (alive, thankfully) stuffed into the trunk after they robbed him first.
November 12, 2009, 10:44 pmDavid McCourt says:
This is all pretty interesting, but no one seems to want to talk about the Second Amendment (which was the point of the post), so I’ll throw this out for argument’s sake.
I think you could make a pretty good historical argument that restricting professional soldiers of the federal army from uncontrolled access to arms while they are on U.S. soil furthers the purposes of the Second Amendment (one of which was to permit the civilian population to be armed as a check on the uses that might be made of a standing army). So, it’s not a question of soldiers’ Second Amendment rights having to give way before the peculiar disciplinary demands of a military; the soldiers — as soldiers at least — have no Second Amendment rights, because it was to protect the civilian population from them that the Second Amendment was enacted.
November 12, 2009, 11:56 pmBruce Hayden says:
I think that we have two issues here. First, whether or not the military has the right, despite the 2nd Amdt., to ban personal firearms on a military base. And, I agree with EV that they do. I think that off-base, the argument may be stronger for the 2nd Amdt., but on-base, the military needs this sort of control.
Secondly, the question is whether or not that policy is wise. And, there I will defer to Drill SGT, who has been there and done that, both as enlisted and as a commander of a combat arms unit.
November 13, 2009, 12:32 amJohn Moore says:
That is an over-reach. Whether the soldiers are personally armed or armed on command is irrelevant to the protection of the citizenry. That protection would be needed in the case where the armed forces were called upon to enforce tyranny, during which they would surely be armed. These days, with M1A1′s and A-10′s, against which 2nd amendment weaponry would have no chance.
November 13, 2009, 1:31 amDaniel J. Wojcik says:
One thing I didn’t see above…lifting a ban on personally owned weapons would have had zero effect last week. Personally owned weapons are not a part of the uniform, so wouldn’t have been present anyway.
Troopies are not issued side arms, generally. Carrying a rifle to out-processing briefings and such is kinda silly; definitely inconvenient.
Oh. Just to point out the obvious: a ban on POWs didn’t stopped someone from bringing one to the center, shouting out Marilu Henner, and opening fire. The safety issue regarding nut cases seems to be mootish.
November 13, 2009, 6:48 amSeaDrive says:
This argument would have more force if the Ft. Hood shooter was not an officer.
November 13, 2009, 9:49 amgasman says:
Is the regular army a militia? Probably not in any use of these terms throughout the last 200 years.
November 13, 2009, 9:54 amPubliusFL says:
When I lived in base housing, keeping your personal weapons in your home (family housing, not barracks) was no problem, but you had to register privately owned firearms with Security Forces (USAF, so SF rather than MPs) if you lived on base. The bases I was stationed at also had rifle & pistol clubs (shooting range for private use) on base, so you could use your firearms on base if you wanted to. No concealed carry for self-defense, though.
November 13, 2009, 10:36 amFederal Farmer says:
SeaDrive,
are you suggesting that Hasan was prohibited in any way by the regulation that disarmed all of those that might have intervened prior to the arrival of the cops?
Hasan is a prime example of why gun bans don’t work. Clue phone ringing off the hook at your house I guess.
November 13, 2009, 11:15 amjohn says:
Ah, Fort Hood…the Great Place, where I spent 4 years. That base is the “picture in the dictionary” that no one should be allowed to carry weapons on post.
Unless it’s like a cell phone and can be carried under the ACU top on the belt. Also, to get more ridiculous, it can’t have any brandnames on it unless it’s military issued. Like, having to rip off camel-bak tags.
November 13, 2009, 11:46 amSeaDrive says:
Officers + guns doesn’t seem an especially benign combination this week.
November 13, 2009, 12:06 pmFederal Farmer says:
So what is it called when you keep trying something despite getting the same results?
How did prohibiting Hasan from carrying work out? Are you being deliberately obtuse?
November 13, 2009, 12:17 pmzippypinhead says:
Funny you should mention that. My dad used to complain about how General Patton adopted exactly that rule for everybody under his command after he arrived in North Africa in early 1943. The full battle dress rule applied to everyone, including HQ clerks, cooks, and motor pool guys. My dad wasn’t front-line infantry and especially hated carrying his ancient and heavy 1903 Springfield everywhere and wearing his steel pot helmet in the Tunisian heat (except duiring the occasional Luftwaffe bombing runs, I suspect). But then again, even my dad would grudgingly admit that this was done as part of the post-Kasserine Pass effort to shape the G.I.s into a fighting force up to the task of taking on the Germans…
November 13, 2009, 12:57 pmSeaDrive says:
What is it called when you give more weight to a hypothetical than to experience?
Someone may be, but I don’t think it’s me. Look, I didn’t say that your proposition (CCW for E8 and up) is a bad idea. I just said your line of argument looked weak.
You also don’t seem to have any appreciation for the facts of military life, to wit, the Army is not going to allow anyone to carry a non-GI weapon while in uniform (Patton was a special case), which means they are not going to allow it while on duty. The chance that there would have been faster response if CCW the regs allowed CCW is very low, and certainly speculative.
November 13, 2009, 2:18 pmDan says:
I’ll echo the reservations of the many who have served in this thread.
A few more regs that are pretty standard across Army posts.
All privately owned weapons brought onto base for any reason, by anyone, had to be registered with the MPs.
Soldiers living in barracks have to store their personally owned weapons in the unit arms room. They can only withdraw them by seeking prior permission from the unit (Company level) commander. (There is an additional admin reason for this, as the armorer has to be there to sign it in and out)
The last post I was actually required, by the letter of the reg, that all personally owned weapons by Soldiers at that based must be registered, regardless of is they were to be ever stored or transported onto base. (So Soldiers who left their shotguns with mom & dad were supposed to register it). Kind of impossible to enforce.
There are good reasons for these regs, though. Servicemembers are great people. But they are occasionally involved in very malovent acts to those around them (as evidenced by this week) and quite often are involved in really, really stupid stuff.
It is a command and discipline issue, bottom line. The post commander is responsible for everything that happens on post and should be afforded the leeway to establish the necessary controls to maintain order on his/her post. A military base is not the rest of the US. Soldiers, airmen, sailors and Marines check some rights at the door for the greater good.
November 13, 2009, 4:24 pmJaimeInTexas says:
Woah, woah, woah. Are we not supposed to be in a war? Why are military personnel on duty in a base not armed?
November 13, 2009, 4:28 pmohwilleke says:
Afghanistan and Iraq are in war zones. Fort Hood is not. I am not aware of any U.S. soldier shot on a military based on U.S. soil by someone who was an enemy in a war since the end of the Indian wars in the late 1800s. The sole exception is Pearl Harbor, which, of course, would not have been mitigated in any way by having soldiers carrying small arms around with them.
November 13, 2009, 5:02 pmJohn Moore says:
You are now!
November 13, 2009, 6:05 pmJaimeInTexas says:
The issue is not whether there has been anyone shot in a military base inside these uS. The issue is that we are supposedly in a state of war against non-state actors, whose tactics, of necessity are low level. In other words, the alleged nature of the war requires that people travelling by airplanes take their shoes off, throw their liquids in trash bins, get their bodies scanned. That rail travellers have their rights violated by armed “peace” officers searching bags without a warrant. Color coded states of alerts. Etc, etc, neauseating etc.
If the above is true there is more reasons to have ALL military bases arming their soldiers, when performing their official duties now that even, when in a hot war against another government.
November 13, 2009, 7:46 pmJaimeInTexas says:
The attack occurred against the military. I thought that terrorism, by definition, was against civilians.
And why is it that the military is so darn distrusting of their own soldiers?
November 13, 2009, 7:49 pm2 cents says:
I tend to disagree with EV (and the reasoning of some posters). As to EV, I think part of the problem is in the choice of language: “A reader asks whether the ban on soldiers’ carrying weapons for self-defense on military bases would violate the Second Amendment.”
Part of the problem is that there is no such prohibition and most of the cited articles are confused on several points.
The below link, which was the next level down to the OP link, takes you here:
http://www.washingtontimes.com/news/2009/nov/11/end-clinton-era-military-base-gun-ban/
“In March 1993, the Army imposed regulations forbidding military personnel from carrying their personal firearms and making it almost impossible for commanders to issue firearms to soldiers in the U.S. for personal protection.” The problem with this is that the regulation refers to Law Enforcement and Security Personnel and generally discusses use of firearms in performance of official duties. I think you can dispel most of the concern by analogizing this to civilian police. Most departments require officers to carry department issued firearms. This is the thrust of the types of issues the regulation discusses. http://www.army.mil/usapa/epubs/pdf/r190_14.pdf As far as commander’s issuing weapons for personal protection, the gist of this is a prohibition on a commander having authority to issue, say an M-16 or M9 to a Soldier who shows up and feels threatened or afraid (hypothetical: Soldier’s girlfriend’s ex-husband follows Soldier. Next day, Soldier goes to Commander. “Sir, I am afraid for my safety. Can I have an M-16?” Answer: “No”). This is not a situation where a commander is prohibited from issuing weapons to defend life or the integrity of the unit from an immediate threat (I think the distinction is between a personal security issue and the inherent military right of self defense). I don’t know how many are confused about this, but I can see that being lost on some.
Okay, so, once you are past most of the confusion about what an Army Regulation says and doesn’t say, I think the issues are still interesting. I also think that finding out whether any bans would be lawful may hinge on constitutional issues, the analysis should continue to the regulatory issues as well as State’s rights issues (and pre-emption). I don’t have enough space to cover a full analysis. But, I will offer a few points.
First, we have to settle on a question. I think the thrust is, “would it be lawful for the military to ban possession of POW’s on or off post. Analyze for family members, civilian employees, or contractors.
On post- I think the analysis needs to address who has authority to regulate and set policies on posts. The answer, generally, is the Installation Commander. Most authority to set policies are delegated to these CDR’s via regulation, however, some powers are granted by inherent command authority. I think the argument for a ban of weapons on post is probably the strongest. I still think it fails (due to 2A reasons, not sure what level of scrutiny would be applied, but I don’t see how a complete ban would meet even rational basis scrutiny when Soldiers have access to much higher powered weapons regularly…I could be wrong on this, though…I also base this on my vague memory of a JAG School exercise that I took about 6 years ago that dealt with similar issues…but mainly having to do with legality of storage, registration, and transportation requirement regulations. I know this is not good authority, “my vague recollections,” but I do remember there being quite a lot of concern with the Commander’s regulations not conflicting with State laws…though, I think you may also have to look to whether the Military base is an exclusive Federal Jurisdiction or shared State-Federal, and perhaps if it is owned or leased government property).
Because it is generally an Installation issue, I do not think that other Commanders may regulate weapons on post. But what about off post? I think a direct Commander may issue otherwise lawful orders with a military purpose (probably easy enough), but I then think you may have Constitutional and scope of authority issues to contend with. And the Commanders certainly have no authority off post over family members, civilians. I think the real world situation is that the Installation/Garrison Commanders are the ones regulating weapons (violations being referred back to chain of command for violation of lawful order/regulation) with the direct Commanders having witholding of authority to address most of the issues to the BDE Cdr level or higher (sometimes up to General Court Martial Convening Authority level or even Corps)for “use, or threatened use of, violence.”
I can give an example of a fairly common regulation for regulating weapons on military posts: http://www.knox.army.mil/garrison/dhr/asd/regs/r210-1.pdf As others pointed out, most bases deal with weapons in the context of registration, storage, and transportation requirements.
Bottom line, I think the original question was based on an article that has misleading and faulty premises. Then I think there was a too quick analysis without looking at some of the more important issues (though, some could say I did not help things much…if that is the claim, I will admit guilt, but offer in defense that this is not a topic that could or should be covered in a blog post; if you want to read ALOT on this subject, go to this Army JAG School publication: https://www.jagcnet.army.mil/JAGCNETInternet/Homepages/AC/TJAGSAWeb.nsf/8f7edfd448e0ec6c8525694b0064ba51/5eb43a418fb98815852569ac004c31db/$FILE/JA%20221%20Law%20of%20Military%20Installations%20Deskbook%20_Sep%2096_.pdf).
A few other comments:
A poster said something about “double jeopardy” applying to the military. This is not a good way of stating or looking at the issue. It is the same for military and civilians. The rule is that the same sovereign can’t try you twice for the same crime. In the military, the sovereign is the US government, so either court-martial OR Federal trial (depending on the basis for Fed. Jurisdiction) are available AND State trial (again, looking at the basis for charges on a military base; it could be that there is concurrent jurisdiction, I believe most TX bases are retained sovereignty grants from the State to Fed govt.) could try MAJ Hasan. But, in this case, it looks like the military is preferring a death eligible case.
“And why is it that the military is so darn distrusting of their own soldiers?”
JT, In my experience, it is not as much that the military is distrusting as much as Commanders are risk averse. If they can prevent a problem (violence, suicide, homicide, etc.), they would be inclined to do so rather than having something bad happen and knowing that someone is going to ask, “Was there something that could have been done to prevent this?”
November 13, 2009, 9:33 pmDan says:
JaimeInTexas
Because Soldiers, on a recurring basis so frequent it is scary, do stuff to show they cannot be trusted.
My first day as a platoon leader a Soldier from my platoon was stopped just prior to trying to beat a Soldier in another Company who had had an affair with his wife. If he had a gun, he would have shot him (and likely the NCO who stopped him).
In a year as a platoon leader, I dealt with directly at least a dozen incidents (and heard of more) of violence between Soldiers. Up to and including being subject to threats by Soldiers who were being punished and/or chaptered out for not being able to cut it.
Now, the Army has a great, well educated force. And most Soldiers perform their duties with diligence, honor and integrity and deserve the gratitude of their nation at war or not.
Mixed in with those great well-educated Soldiers are guys who do drugs, Soldiers who are involved in gangs, guys who have to show every how tough they are constantly, daredevils, inattentive guys, drunks, Soldiers who can’t handle disciplinary punishment, guys who will do anything to get out, etc.
There are lots of great Soldiers, and more good than bad. But whoever posted “Modern American enlisted members are selected for intelligence and character, rigorously trained, and see themselves as professionals, which they are.” above needs to realize that it doesn’t apply to everyone in the Army.
The complaint about Army training heard often is that it is based on “the lowest common denominator”. Well, after many, many decades of experience, the rules tend to be based on that as well.
November 13, 2009, 10:02 pmJohn Moore says:
Dan says,
And this differs from civilians, who are usually allowed to have firearms, exactly how?
I too saw soldiers do stupid things when I was in the Navy. Duh. People do stupid things, and the military removes the self-selection that may keep observers from noticing in normal life. It doesn’t excuse removing their firearm privileges.
November 13, 2009, 10:09 pmShane says:
I’m surprised at just how many people think that arming soldiers on duty would have prevented this event. Does nobody remember the Camp Liberty shootings a mere six months ago? An armed soldier killed 5 and wounded 3 victims. Every soldier on deployed bases carries at least one weapon and ammo within arms reach. And it didn’t stop this guy. If that Iraq shooting happened in a building as crowded as a soldier processing center, he could have EASILY killed more than 13.
In fact, arming the potential victims makes the first responder’s job incredibly difficult. When everyone is wearing the same uniform, and everyone has a weapon drawn – who do you shoot? The brown guys? Sounds like a terrific policy, given that the authorities did not realize there was only one shooter until after the whole thing was over. Initial reports were that there were 3 shooters, possibly more. How many well-meaning but innocent soldiers would have died at the hands of confused police? How many more would have been killed in the crossfire?
So if an “soldiers may be armed on duty” policy wouldn’t have even prevented the tragedy, what makes it worth the unintended consequences? It seems like there’s a negligent discharge/accidental discharge every few days in Iraq – I’d hate to extend that kind of risk to our CONUS bases.
Seriously. Events like these should have prevented long before the shooter entered a building with a gun and intent to kill. It’s not like there weren’t warning signs.
November 14, 2009, 3:40 pmJohn Moore says:
In all but rare cases, the first responder’s job is to gather evidence and write reports. Hence I can’t have a lot of sympathy for that viewpoint.
November 14, 2009, 8:01 pmandy says:
I like your point…what about the National Guard (militia anyone?)
November 14, 2009, 9:45 pmJaimeInTexas says:
Ditto. And, again, are we not in “war mode?” Are we really so naive to think that we will not be targets?
At least, the people that supposedly fight in wars are supposed to be trusted within the boundaries that they inhabit.
Put all kinds of unconstitutional laws and restrictions on us civilians but, burden the folks wearing uniforms? nah!
November 14, 2009, 9:48 pmLarryA says:
I’d suggest they start by shooting anyone who is shooting at unarmed people. He’ll probably be the one everyone else is looking at. Those armed people who are in a defensive position protecting unarmed people can be checked out and left alone. It isn’t rocket science.
Amazing that this argument isn’t made about plainclothes cops.
There are what, about half a million warfighters in the U.S. military? Against 80,000,000 gunowners? That’s 160:1. The infantry term for taking on those odds is “suicide.”
November 15, 2009, 4:29 pmJohn Moore says:
Which is why you wouldn’t do it just with infantry (see above M1A1′s and A-10′s). Besides, a significant number of those wouldn’t fight.
November 15, 2009, 5:30 pmThe Twin Cities Carry Journal › Blawg Review #238: Celebrating the International Day of Tolerance … and the NRA’s Birthday says:
[...] Second Amendment prevent the army from banning soldiers from carrying firearms on military bases? No. Another easy one — too difficult, it seems for Wolf Blitzer at CNN — is how a lawyer [...]
November 16, 2009, 2:04 ammarkm says:
John Moore: And how would the M1A1′s and A10′s be supplied with fuel and ammo?
November 17, 2009, 9:11 am