Big News On Fight For Carry On Corps Of Engineers' Lakes And Recreational Areas

Back in 2014, the US District Court for the District of Idaho issued an injunction that prevented the US Army Corps of Engineers from banning functional firearms in campgrounds and on lakes. Chief Judge B. Lynn Winmill's opinion in Morris v. USACE stated that the prohibition was a substantial burden on the exercise of the Second Amendment. The case was appealed to the 9th Circuit Court of Appeals by the government.

Fast forward to today and a different administration. The Mountain States Legal Foundation who represents Elizabeth Nesbitt (formerly Morris) and Al Baker in their case just learned that the DOJ lawyers have submitted an emergency motion stating that they plan to revise the policy and codify the win at the District Court level. If this does become the case, this is a great win for the Second Amendment and its practice on federally-regulated lands.

MSLF just released this statement a few hours ago on the case.

DENVER, CO. An Idaho woman who is barred from carrying a functional firearm for self-defense when she visits vast federal recreational facilities today learned of the Trump administration’s intention to codify her victory before an Idaho federal district court, which ruled the federal government agency’s ban on firearms violates the Second Amendment, at the U.S. Court of Appeals for the Ninth Circuit. Elizabeth E. Nesbitt of Nez Perce County is licensed to carry a concealed weapon, regularly carries a concealed weapon, and often seeks to recreate on lands managed by the U.S. Army Corps of Engineers. Because Corps of Engineers regulations ban functional firearms, even while camped in tents, Ms. Nesbitt is subject to criminal prosecution if she attempts to exercise her Second Amendment rights. Alan C. Baker, a firearms instructor and resident of Idaho’s Latah County, is a co-plaintiff in the suit, which was filed in August of 2013 in Idaho federal district court. The Corps of Engineers did not reply to requests from the attorney for Ms. Nesbitt and Mr. Baker, Mountain States Legal Foundation (MSLF), seeking an exemption from its firearm ban, a ban that has not changed since the landmark Heller ruling by the Supreme Court of the United States.

“On the eve of oral arguments before the Ninth Circuit in Seattle, federal lawyers filed an emergency motion stating their clients’ intention to ‘reconsider[] the firearms policy,’ which the panel granted moments ago,” said William Perry Pendley of Mountain States Legal Foundation. “We are pleased the U.S. Army Corps of Engineers will at last comply with the Constitution.”

The Corps of Engineers operates public parks and recreational facilities at water resource development projects under the control of the Department of the Army and thus is the nation’s largest provider of water-based outdoor recreation. It administers 422 lake and river projects in 43 states, spanning 12 million acres, encompassing 55,000 miles of shoreline and 4,500 miles of trails, and including 90,000 campsites and 3,400 boat launch ramps. Waters under its control constitute 33 percent of all U.S. freshwater fishing.

Ms. Nesbitt was issued an emergency license by the Nez Perce County Sheriff to carry a concealed handgun in 2012 due to threats and physical attacks against her by a former neighbor. She regularly carries a handgun for self-defense. She uses Corps-administered public lands near the Snake River in Lewiston, Idaho, to boat with friends, regularly walks the Corps-administered paths in the area with her dog and/or her family, and must travel across Corps-administered public lands to reach Hells Gate State Park.

Mr. Baker is a NRA-Certified Home Firearm Safety, Personal Protection In The Home, Rifle, Pistol, and Shotgun Instructor, is a Utah Concealed Firearms Instructor, is licensed to carry a concealed handgun in Idaho, Utah, Oregon, and Arizona and regularly carries a handgun for self-defense. A life-long outdoorsman, he regularly recreates on Corps-managed lands in Idaho, including Dworshak Dam and Reservoir on the North Fork Clearwater River.

More news on the case can be found here.

Morris V. Army Corps Of Engineers - Preliminary Injunction Issued

Morris et al v. US Army Corps of Engineers is a case brought in US District Court for the District of Idaho by the Mountain States Legal Foundation that sought to enjoin the Corps from prohibiting firearms on Corps-administered lands. The case was brought in August 2013 on behalf of Elizabeth Morris and Alan Baker who wanted to have functional firearms for self-defense while camping, hiking, and boating on Corps-administered lakes in Idaho. On Friday, Chief Judge B. Lynn Winmill issued a preliminary injunction against the Corps and in favor of the plaintiffs' request to have functional firearms on Corps-administered property.

The argument before the court was whether Corps regulations that prohibited a loaded, functional firearm unless hunting or at a target range violated the Second Amendment. To evaluate this, Judge Winmill used the two-step analysis established in the recent 9th Circuit decision in US v Chovan. First, the court had to determine whether "the challenged law burdens conduct protected by the Second Amendment." The second step was to determine the appropriate level of scrutiny.

The plaintiffs had argued that a tent is a temporary residence and should be entitled to the same protections one would have in a more permanent dwelling. Noting that the Supreme Court in Heller had held that the home is the place where the need for self-defense is most acute, Judge Winmill agreed with the plaintiffs that a tent is a temporary residence entitled to the same protections.

The same analysis applies to a tent. While often temporary, a tent is more importantly a place – just like a home – where a person withdraws from public view, and seeks privacy and security for himself and perhaps also for his family and/or his property. Indeed, a typical home at the time the Second Amendment was passed was cramped and drafty with a dirt floor – more akin to a large tent than a modern home. Americans in 1791 – the year the Second Amendment was ratified – were probably more apt to see a tent as a home than we are today. Heller, 554 U.S. at 605 (holding that “public understanding” at time of ratification is “critical tool of constitutional interpretation”). Moreover, under Fourth Amendment analysis, “tents are protected . . . like a more permanent structure,” and are deemed to be “more like a house than a car.” U.S. v. Gooch, 6 F.3d 673 (9th Cir. 1993). The privacy concerns of the Fourth Amendment carry over well into the Second Amendment’s security concerns.

The regulation at issue would ban firearms and ammunition in a tent on the Corps’ sites. This ban poses a substantial burden on a core Second Amendment right and is therefore subject to strict scrutiny.

 Judge Winmill then took up the issue of whether the ban on functional firearms in other places by the Corps violated the Second Amendment and, if so, what was the burden to the plaintiffs. He starts out by stating that the Supreme Court in Heller held that carry outside the home for self-defense was protected by the Second Amendment. Looking to see how other courts had dealt with this issue, he examined the 4th Circuit's decision in US v Masciandaro and the 7th Circuit's decision in Moore v. Madigan (and by inference, Shepard v. Madigan).

In Masciandaro, the 4th Circuit concluded that the National Park's regulation struck a balance between public safety and self-defense and thus was permitted. By contrast, in Moore, the 7th Circuit concluded that the Illinois law was so restrictive that a balance couldn't be struck and thus was unconstitutional.

The ban imposed by the Corps places this case closer to Moore than Masciandaro. The Corps’ regulation contains a flat ban on carrying a firearm for self-defense purposes. By completely ignoring the right of self-defense, the regulation cannot be saved by the line of cases, like Masciandaro, that upheld gun restrictions accommodating the right of self-defense.

 As to scrutiny, Judge Winmill said it was unnecessary for the court to decide because the regulation failed even at intermediate scrutiny. He said the regulation designed to protect both infrastructure and the public was just too broad and could not satisfy the "reasonable fit" test. The Corps had argued that its regulations should be evaluated under a rational basis test given the 9th Circuit's decision in Nordyke. The judge disagreed because Nordyke never discussed self-defense.

Finally, the court looked at the plaintiffs' request for an injunction and whether it was as the Corps argued a mandatory injunction. The judge said since the plaintiffs only request a non-enforcement of a ban and did not require an affirmative action on the part of the Corps, it was not a mandatory injunction and merely a prohibitory injunction. After examining whether the plaintiffs met the standards for granting a preliminary injunction, Judge Winmill wrote:

From the discussion above concerning the motion to dismiss, it is apparent that plaintiffs have shown a very strong likelihood of success on the merits. Moreover, irreparable harm is likely because the plaintiffs have made out a colorable claim that their Second Amendment rights have been threatened. See Sanders County Republican Cent. Committee v. Bullock, 698 F.3d 741, 744 (9th Cir. 2012) (holding that colorable claim of constitutional violation satisfies irreparable harm element). This threat tips the balance of equities in favor of plaintiffs because the harms complained of by the Corps could be “addressed by a more closely tailored regulatory measure[].” Ezell, 651 F.3d at 710. For the same reasons, an injunction would be in the public interest.

Accordingly, the Court will grant the injunction requested by plaintiffs enjoining the Corps from enforcing 36 C.F.R. § 327.13 as to law-abiding individuals possessing functional firearms on Corps-administered public lands for the purpose of self-defense.

Two things need to be noted here. First, this is an preliminary injunction and the Corps is entitled to an evidentiary hearing that could overturn the injunction. The second points out just how critical it is to get a body of earlier decisions affirming the Second Amendment. In this case, the judge looked at not only Heller but such cases as Ezell, Nordyke, and Moore v. Madigan to name just a few. Having this body of case law is critical for wins in future cases.

The full memorandum and order can be read here.