Guns in National Parks:
The on-line New York Times has a daily feature called "Room for Debate." The paper picks a topic for the day, and posts short essays from five experts. Today's topic is Guns in Parks: Safe, Scary or a Sideshow?. My essay on the topic supports the new federal law, and praises President Obama for signing it, because the law simply says that federal lands should follow the same policies as their host states. The four other essayists include Jens Ludwig and John Lott.
http://www.politico.com/news/stories/0509/22863.html
The burden therefore is on those saying there will suddenly be such issues in Nat'l Parks to explain a) why DOI employees will be less competent than their BLM and FWS brethren in handling such problems, and/or b) why what isn't an insurmountable problem on those agencies lands will suddenly become a problem on DOI lands.
This, by the way, is the same burden of justification for any person who argues against any relaxing of weapon's possession restrictions, when said restrictions do not exist in other states or locations and their are no notable problems existant.
For example:
Since both Alaska and Vermont now allow carry without a permit, the burden is on those against permitless carry in any other location to make a rational argument against going that direction.
Since Alaska and Vermont's cops and citizens have seen no problems from that relaxation and Alaska has not seen greater rates of misuse since removing the permit requirement, what then is the rationale for requiring permits in any other state?
Is the "anti-relaxation" position that their state's cops and citizenry are somehow less competent or law-abiding than Alaskans or Vermonters?
No one is suggesting that the new law makes it "insurmountable" to catch poachers, whatever you mean by insurmountable. That's a straw man. The argument is that the new law makes the prevention and apprehension of illegal poachers much more difficult.
You seem to think that poaching is currently not a problem on BLM and FWS managed lands. What's the evidence for this? What's the level of poaching on these lands compared to National Park lands? Are the animal populations on the different lands and other relevant circumstances similar? If you could show that the circumstances between the different lands were similar (except for the different legal rules regarding guns) and that poaching doesn't happen more often on BLM and FWS lands than currently on National Park lands, then I think you would have a fine argument. As it is, you have a nice theory, but have failed to establish the supporting facts.
If one is inclined to break a law by poaching in the first instance, getting caught with a gun (which does happen) is only an add-on charge. Even then, it's usually the case that the person with the gun is already violating additional laws (e.g., carrying while on parole). He's not really paying a lot of attention to any laws that proscribe his carrying a weapon.
I'm sure that some likkered-up poacher will decide that taking a shot at the Fish &Wildlife Officer rather than go to jail. That already happens. Scofflaws tend to scoff at most laws, not just the most immediate or newsworthy one .
I think you are under the misimpression that this law allows only concealed weapons on national parks. That is incorrect. To the extent that state law does not prohibit carrying rifles, then they cannot be prohibited on national parks within those states under the new law.
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Doubtful it would much change the "catching" side of an offense. The better argument is that the rate of poaching would increase.
That would explain all those cases of speeders deciding to shoot the cop that pulled them over. After all, once they decided to break the speed limit, they may as well break other laws too, right?
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Correct me if I'm wrong, but I thought the law applying to the National Parks would be the same as those in the host state.
In California, that would mean: NO GUNS... since operable firearms are not allowed in State Parks.
I wonder is this lady has spent much time hiking in the Rocky Mountains, where IMHO some of the best hiking is outside the parks. People carrying firearms have always been common there, especially horse packers.
Could you provide your supporting data for your assertion that this law "makes the prevention and apprehension of illegal poachers much more difficult"? I'm trying to think like a scofflaw poacher here under current law ... if I am going to poach from a vehicle, I could just load the gun when I was ready to shoot. If I was going to hike or horsepack into the park to poach, couldn't I just get a takedown rifle and keep it out of sight? I would think that the noise of the shot would be a big problem, but not getting the gun there undetected. It's not like rangers are stopping hikers to search their backpacks. Can you elaborate on how this makes a poacher's life easier?
First, previously possession of a firearm in a national park was banned, so if you saw someone with a firearm (such as, say, a poacher hunting for game), you could accost the individual without waiting for him to, er, actually poach something. Now, he's presumably entitled to carry that weapon (pursuant to state law) and thus the danger of detection is decreased. (It's still the same on the way out, assuming he's got the poached animal with him, but he can walk out to where he wants to poach without trouble.)
Second, other people who are enjoying a national park and carrying firearms for other reasons (self-defense against wild animals or muggers or whatever) may end up doing some poaching of opportunity, just because they're out in the woods with a gun and oh look, there's an animal. This probably isn't a big effect - others have noted that weapons that are good for hunting are not generally those which are good for self-defense - but there will be a little of it, anyway.
Finally, you'll get your poacher who bald-faced lies about having poached anything. "That moose attacked me, Mr. Ranger sir!" Which is an interesting question... if a dangerous animal attacks you, and you shoot it in self-defense, what is the proper disposition of that animal's corpse? Do you get a new bearskin rug, or are you responsible for reporting it to a forest ranger, or what? Anyone know?
Note that I'm not opposed to the new policy. If there are reasons why we should ban guns, certainly there are reasons why we should not, and "there are carnivores present" is a fine reason to have a gun handy. But yeah, maybe there will be some more poaching too.
For example: in Virginia it is permissible for a concealed carry permit holder to be armed while commuting in his automobile on all state and interstate highways and other public roads. However, if a CCW permit holder drives, for example, between his home in the Mount Vernon section of Fairfax County to his job in Alexandria, he is likely to commute on the George Washington Memorial Parkway, which is a 4-lane limited access highway that just also happens to be on National Parkland, and is patrolled by the U.S. Park Police. He can lawfully carry a firearm on all the connecting state roads and at both his originating point and his destination. But under the old regulation, in mid-commute he turns into a felon? That's both counter-intuitive and utterly unjust.
Off the top of my head, similar situations exist on major roads such as US-29 through Manassas National Battlefield Park, US-211 when it crosses Shenandoah National Park, and in several other National Park facilities just in the Commonwealth of Virginia. In fact, there are examples like this all over the country, where well-traveled swaths of parkland, historic sites, battlefields, etc. exist in the middle of shall-issue CCW jurisdictions.
Incidentally, the wildlife "poaching" argument is beyond silly - most of the people who make it have obviously never hunted. Discharge your rifle, and everyone within 3/4 of a mile is going to know you're shooting in the park. And then I imagine it's also going to be a bit of a challenge for our hypothetical poacher to drive his deer past the ranger booth at the park entrance without attracting a wee bit of attention ("excuse me sir, what's that bulge under the tarp in the bed of your pickup?"). Poaching certainly hasn't been out of control in either National Forests or state parkland in my part of the country, and I doubt it will be in the National Parks, either.
Frankly, most of the arguments being made against harmonizing firearms laws in the parks and the surrounding jurisdiction remind one of the fear-mongering when shall-issue concealed weapons laws first hit the books. After a year or so of no major problems, nobody's going to think twice about the issue -- law-abiding firearms owners aren't going to start slaughtering either wildlife or hikers. And the crooks who already infest some of our parks aren't going to do anything different regardless what the law is (except perhaps think twice about preying on victims who now might be able to shoot back).
Criminals have guns also but so do law abiding . The criminal act is what has to pe punished not the fact you have a gun.
There are ranges on some state parks and I have used those with Boy Scouts. They are a great way to educate gun safety and that shooting is a part of America's heritage.
I was not realy happy with the previous change to regulation that only allowed CCW holders to carry in NPS. Now I can carry OC if in a NPS that is on land of a state that allows OC. This change is much better.
The issue of traveling on roads like the GW Pkwy and RT 29 in VA that bisects NPS is true. Most people did not change the gun into safe storage and took the risk of being charged and made a felon. This change will safeguard those decent folk who have no intention of felonius acts with a gun but do not want to have to stop on the road twice or more to move their gun on their daily commute.
I'm still trying to figure out - if I'm willing to commit the crime of poaching, why wouldn't I just conceal the gun? If I'm road poaching, it's pretty easy to conceal any rifle in a vehicle. If I'm hiking, even a Marlin Guide Gun will easily fit in a normal backpack. I confess I'm pretty ignorant of the realities of poaching - I'd love to figure out why concealing the gun until you're ready to shoot is such a big deal. I take enough pictures of wildlife after removing my pack and getting the camera out - why is a gun so different?
How common do you think that will be? Off hand, it strikes me as unlikely. It's seems like the same theory as Montana's restriction on CCW in bank lobbies - that people who wouldn't otherwise rob banks will be overwhelmed by the temptation of all that cash.
In Alaska (where firearms have always been allowed even in Denali Park), there are specific reporting requirements, and IIUC you have to turn in specific parts, e.g. bear paws, to make sure they aren't being sold on the black market. These are not federal requirements, they are state wide requirements. All states have hunting laws, and shooting anything not classed as vermin in self defense is going to have to be justified to the game warden, in a park or out.
From hiking during hunting season, I think that is a very conservative estimate of the distance (but terrain does have a large effect).
However, I can't help but think that the congresscritters changed this law because they themselves drive those roads near the Beltway, and don't want to be caught breaking the law.
We need to have more instances like this, where government is forced to live with the law they make. It would be healthy.
Didn't we already cover, relatively recently, the legality of teenage possession of firearms in the City of New York?
Other than that point, I enjoyed your response, Mr. Kopel.
My understanding of the coburn amendment is the same as yours. I'm not sure about your California example, however. If California has a law prohibiting firearms on STATE parks but allowing open carry of rifles generally (BTW, this is just a hypothetical; I have no idea what CA gun law is), would this law then be read to ban firearms on national parks? We would have to look to the statutory language, but if it just says same as state law generally (rather than same as state law for state parks), then I'd think open carry would be permitted under the new law. Also, what happens under the new law if a state passes a gun restriction specific to national parks within the state's borders? Can a state do that?
Or, as someone else suggested, he's a pragmatist.
I've read all the positions linked, and indeed, good points are raised, discussed, and argued. These include aspects such as poaching, state's wishes, patchwork rules, personal and public safety, and emotions surrounding fear, safety, and aesthetics.
Yet what seems lacking is constitutional context ... the reality underlying and over-arching all of these aspects. At the most fundamental level and notwithstanding all of the aspects mentioned above, there is a substantive if not fundamental individual right to bear arms that rises from the natural right of self-preservation. This right precedes the constitution ... the constitution commands only that it shall not be infringed. Even within this very amendment under discussion, a bipartisan majority of Congress found that "the right of the people to keep and bear Arms, shall not be infringed." Arguably, the right to bear arms transcends the substantive, and is fundamental (as the 9th Circuit Court of Appeals recently ruled).
Thus, while these discussions of the public policy surrounding arms-bearing in National Parks and Wildlife Refuges is productive and educational, we must not forget the underlying context ... the Bill of Rights was ratified precisely to place certain rights out of the reach of public opinion and the legislative actions of federal and state (eg. 14th amendment) governments. While discussion of the effects of substantive rights on public policy is germane, the right of the people to bear arms is outside the realm of public policy decisions.
Carl in Chicago writes:
"While discussion of the effects of substantive rights on public policy is germane, the right of the people to bear arms is outside the realm of public policy decisions."
Amen!
Or, as someone else suggested, he's a pragmatist."
That is true, however, the 2A experts, as well as the gun lobbyist/sellers, in particular, have argued that he would confiscate all guns..."buy them now, while you still can", etc. Was all that just hype and marketing?
It's not that he doesn't want to do it, it's just that he's got a lot on his plate.
Basic civics.
As far as the Federal government is concerned, under the Constitution we begin with the unrestricted individual right to keep and bear arms. The burden is, and always has been, on the restricter to demonstrate (under whichever test) that each and every individual restriction of that right is necessary and will accomplish the stated public interest goal. The burden is never on those wishing to exercise a freedom why they should be allowed to. The unrestricted exercise of a freedom or right is the default position.
I am merely using the examples of National Forests and BLM lands (and existing National Parks in Alaska) to support the logic that carrying of loaded weapons under state law apparently is not (and has not been) so much of a problem on those Federal lands that it has been deemed necessary to restrict it. There has been more than enough time for such an attempt to have been made, that's prima facia evidence there is no need.
Reason alone would thus lead us to believe that, as this law takes effect, there will likewise be no logical basis found to attempt to again restrict carry on National Park lands outside of Alaska.
This logic is further supporrted by the simple fact that the arguments being made against this relaxation are the exact same arguments made every time carry restrictions are lifted. Yet in every previous incidence in 48 states those arguments are shortly demonstrated to be unfounded. No "blood in the streets", no "normal people flipping out", no anything. I'm sure you've been here long enough to be familiar with the research done or noted by more than one regular poster on the subject. The evidence is frankly overwhelming and the unwillingness of those who seek to restrict carry to acknowledge it over and over again is intellectually appalling.
As for Yosemite, California state law currently allows loaded open carry in unincorporated areas of the state, except for "state parks". Note that, it says California "State Parks", not "parks in the State of California". California State Parks are just that, state-owned land designated by California as a "state park".
Conversely, National Parks are Federally-owned land designated by the Federal government as a "National Park", thus the controlling portion of the statute will (or should) simply be the "loaded open carry permissable in unincorporated areas".
Also, the Statute does not consider BLM nor Forest Service lands as under any state prohibition, those are controlled by Federal regulations on what carry is lawful. So, unless I'm missing something glaring, National Parks should be treated the same.
Yeah, all those park rangers and game wardens who are the ones making this argument obviously have no idea about hunting. You are incredibly astute.
2. The same folks who make the “It’ll cause poaching” argument have also predicted that concealed carry would result in blood flowing in the streets, airline pilots carrying means they’ll shoot unruly passengers, expiration of the “assault weapons” ban would leave bodies stacked like cordwood, allowing off-duty cops to carry would cost cities billions in liability, etc. Over twenty years and dozens of predictions, they’re batting .000. There’s a credibility gap. The amendment says you can carry in national parks if you can carry in the state, not in the state parks. The celebrities and politically-connected few who can get a concealed handgun license in California are allowed to carry in California, therefore they can carry in the national parks and refuges. (As an example. I know the law allows more.) Well, technically (because this is a law blog, after all) rangers cannot use a person having a firearm illegally as a premise that that person is poaching in national parks and refuges. You can’t base an arrest on the presumption that a person might be doing something. They could arrest for possession of the firearm, but they have to catch someone poaching to charge them with poaching. Yet another case of anti-gunners winning a battle and losing a war. Well, his plan is hardly “secret” to anyone who pays attention. It doesn’t mean that he isn’t anti-gun, and won’t take every opportunity to pursue that agenda. The number of pro-gun Democrats in the House and Senate is a pleasant surprise, not something President Obama planned or appreciates.
Now, what about concealed carry in Post Offices?
This, I suspect, is just what Justice Scalia had in mind when he penned the "sensitive places" dictum in Heller. I think the courts would be very reluctant to throw out the general ban on firearms in Federal facilities. Probably would be strategically best to direct future challenges to Second Amendment restrictions at other problems, at least until the caselaw develops a lot more.
Although there's not necessarily a rational reason to fear lawful concealed carry in many public buildings. Some years ago I helped chaperone a 4th grade class trip to the Virginia State Capital in Richmond. At the same time the guards were making all the 10 year olds tromp thru the metal detector as the kids entered the building, they were also letting everyone who showed a CCW permit bypass the machine. No problems even in that "sensitive place" - at least not until last year when one of the dumber members of the Va. House of Delegates got some unflattering press coverage after he managed to accidentally discharge his legal handgun while sitting in his Capital office, and believe it or not, shot his kevlar vest hanging on the coat rack. Idiot...
You might consider reading the amicus brief filed on behalf of Chicago (McDonald v Chicago ... the "Chicago handgun ban case") by the US Conference of Mayors. Arguments are at 0930 this coming Tuesday in the 7th federal circuit court.
Their arguments supporting Chicago's handgun ban are at the very least analogous to these arguments against carry in parks with respect to poaching and enforcement of anti-poaching laws.
I've summarized my take on the brief below (it was posted elsewhere). In a nutshell, the argument is that New York city's strict handgun laws facilitate "stop-and-frisk" tactics by granting police authority to conduct searches when they reasonably believe that a suspect is unlawfully carrying a firearm. Ergo ... this is reason to keep Chicago's ban in place.
US Conference of Mayors
"Stop and Frisk" policing has arguably been successful in New York City. Fourth amendment rights notwithstanding, overturning handgun bans will remove any justification municipalities think they have for stopping and frisking suspected criminals. They seem to suggest that Heller's binding precedent included that people have an individual right to possess and carry guns in the case of confrontation ... but then they get tangential and ridiculous, arguing that could also include the right to carry for offensive, criminal confrontation. Nevermind that possession of arms while conducting drug trade and criminal gang activities is a federal offense, or that lawful use of force is specifically defined ... but if Chicago's handgun ban is overturned and the 2A is incorporated, then drug dealers in Chicago will have the right to carry arms to protect their illicit enterprises. This is a stretched argument ... stretched way beyond the reasonable.
WA law (and I suspect most states) requires a permit holder to show the permit when requested by any LEO. As I understand it, there isn't a reasonableness test of any kind for the LEO to make the request (but IANAL). Certainly if an officer has cause to stop and frisk Sue, he can ask to see her permit, and if she doesn't have one then his frisk is going to pass muster.
Some states go farther - Sue must affirmatively provide the permit even w/o a request.
I don't see much comfort for our armed drug dealer here.
My recollection is that while one of the early incidents was at a post office, the actual rate isn't distinguishable from any other employer. The USPS is a large employer.
I have to put in a plug for the way WA handles state court facilities - a court may elect to ban CCW (and most do), if and only if it provides the ability to check firearms. If you don't have the guards and metal detectors, you don't have an effective ban. If you do, you have the people available to check weapons.
But that targets criminals, not law-abiding citizens.
Yeah, all those park rangers and game wardens who are the ones making this argument obviously have no idea about hunting. You are incredibly astute.
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Or perhaps the rangers and wardens who make the argument are being less than fully honest about their motives for the argument? i.e. they are throwing stuff at the wall and hoping something sticks.
Possession of a fishing hook does not make one a poacher.
Catching and keeping a fish out of season does make one a poacher.
The analogy for birds and critters holds true as well.
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