The following was submitted as testimony to the Senate Committee on the Judiciary regarding SB 115, the open carry library gun-free zone bill. A shorter version and a copy of the full version has been emailed to each member of the committee. Should this bill pass, it is my intent that the facts make it into the record.
-GC
Candid Facts on the Origin of SB 115
SB 115
could be characterized as a vindictive move against gun owners because certain
citizens stood up against the illegal actions of the Las Vegas Clark County
Library District (LVCCLD, hereafter, the District) to prohibit openly carried
firearms. Had the District acted legally and abided by state law, there would
be no need for a bill. Instead, the District violated state firearm regulation
preemption laws, violated Constitutional rights, and violated the statute
governing library regulations. In the aftermath of public outcry and a lawsuit,
Assemblywoman Bilbray-Axelrod, a trustee until March, stated that she intended
to introduce a prohibition to prohibit firearms where they have always been
legal. The District knew it could not ultimately prevail under the law, so it
is seeking through an intermediary to ban a right its staff, administration,
and trustees disagree with.
State law
reserves the right to regulate where firearms can be carried entirely to the
Legislature under a concept known as preemption. No local regulations are
valid, any local regulations in existence to the contrary are required to be
repealed, and persons adversely affected by enforcement of illegal rules are
entitled to enhanced civil damages. Firearms carried openly, not concealed, are
permitted in most public buildings. Open carriers are among the most
well-behaved and law-abiding citizens who carry firearms for self-protection.
The issues with the District are longstanding. The citizens who have openly
carried at libraries did so not for purposes of protest, but for self-defense
as a part of their daily routine. There are no safety threats, or any known
history of danger, from any person legally carrying a firearm for self-defense
in a library.
In California, for example, until
2015 concealed firearm permittees could carry concealed handguns on school
campuses. This was eliminated in 2015, leaving it to the discretion of local
schools. But when schools began granting permission for some to carry on
campus, the California legislature introduced a bill to stop this.
That is the danger facing Nevada; will those disinclined to gun rights
gradually ban firearms as citizens exert their rights?
I
characterize SB 115 as nothing more than revenge for the public calling out the
District, its staff, administration, and trustees, for violating state law.
Passage of SB 115 would diminish the nature of our republican, democratic
government, emboldening any official with power or connections to ban any form
of behavior that personally offends that official. The law cannot, and should
not, be changed simply because citizens stood up against officials who ignore
and subvert laws they disagree with.
History of Incidents,
LVCCLD
The Las Vegas Clark County Library District
has a history of illegal prohibiting legally carried firearms dating back to at
least 2011. Open carriers have been ejected, trespassed, arrested, and
threatened with various legal and administrative actions despite the absence of
legal authority or even an enforceable district policy. Requests for written
permission to carry a firearm have been denied by library administrators.
Numerous incidents have occurred
involving open carriers and District staff in the past year. Most of the older
incidents are catalogued on the opencarry.org
forums. One such incident includes a security guard who began to draw his own
openly carried gun on an openly carrying library patron. In 2015, there were
two known incidents where open carriers
were accosted by library staff simply for openly carrying a weapon. No
one was arrested, though one carrier was willing to be arrested, however, it
appears he had to leave before LVMPD arrived. On March 16, 2016, the District
had mother and open carrier Michelle Flores arrested for trespass for openly
carrying a firearm. As a result, Flores filed a lawsuit under the provision of
state preemption laws that allow anyone adversely affected by illegal no-gun
regulations to recover damages. Unfortunately, her request for a preliminary
injunction did not prevail and the case is on appeal.
The safety concerns about a firearm
in a library are unfounded. There have been no known instances of a negligent
discharge of a firearm in a Nevada library. There are no known instances of a
lawfully armed citizen brandishing a firearm in a library. There are no known
instances of a child accessing a lawfully carried firearm in a library. The
only incidents involving those legally carrying firearms in a library were
those incidents precipitated by library staff.
It is worth nothing that every
person to my knowledge who has had an incident at a library, including myself,
has not been seeking to cause a controversy. Each person openly carries a
firearm regularly for self-defense as part of their daily activities and chose
to visit the library for the reasons one patronizes a library. Influential
members of the gun rights community have diligently worked to prevent any such
“stunts” as an armed protest or visit simply for to generate a “test case.”
For those unfamiliar with the
character of open carriers, the idea of them being unpermitted and thus
untrained and unsafe etc. is a fallacy. Many open carriers do indeed have
concealed firearm permits. Others have trained with their firearm and practice
with it frequently, but choose not to pay for a concealed firearm permit as
they disagree philosophically with paying and apply to exercise a
constitutional right. Open carriers, due to their higher profile when carrying
a firearm, are often extremely cautious, polite, and law abiding. This
correlates with studies that show concealed firearm permittees, i.e. law
abiding armed citizens, are more law abiding than police.
As a gun rights journalist,
historian, and former law enforcement officer, I submit the following based on
my deep personal knowledge of the history of this issue, the history and social
issues of both open and concealed carry, and gun rights in general. I do not
represent anyone other than myself.
Open Carry Generally
Open carry has long been the
judicially favored method of carry. Concealed carry has long had a negative
reputation, in that only criminals, murderers, and someone up to no good had
firearms. This stems from a time when justifiable homicide was often extended
to insults of honor; a behavior long disclaimed under law and by society.
Despite concealed carry being viewed by the law and society as the province of
the “badman,” concealed carry has actually been the preferred method of carry
by society. Concealed carry for self-defense has lost any negative associations
in mainstream society, opinions on gun control aside.
Yet because an openly carried
firearm can be seen by all, it is very hard for someone who intends to ill-use
that weapon for criminal purposes to conceal that fact, given the relative
greater share of attention they garner. For the reason that the firearm was not
hidden (in the sense of there being something bad, an evil intent, to be
hidden), openly carried firearms were not stigmatized until recently. Open
carry is well-protected under a multitude of state Supreme Court decisions
partially recounted in Peruta v. Gore,
which applies to Nevada. It is generally believed by most states’ judiciaries
that open carry cannot be strictly regulated as SB 115 attempts to do here.
Nevada never prohibited openly
carried firearms anywhere or within public buildings. The only blanket firearm
provisions under state law are NRS 202.265, which applies to school grounds and
is the section SB 115 seeks to amend, and meetings of the legislature
.
Prior to 1995, the prohibition of firearms in public buildings did not exist
within the statutes
. As far as research
indicates, there was no prior law on the topic and no need.
Firearms in Public
Buildings
NRS
202.3673 prohibits concealed weapons permittees from carrying concealed
weapons, not plainly visible (openly carried) weapons, in buildings posted with
"no guns" signs or having metal detectors at each public entrance.
Most LVCCLD buildings and public buildings in urban counties are posted thusly.
Legislative Counsel Bureau in 2015
wrote an opinion confirming the legality of openly carried firearms in public
buildings. “"Because there is no general statutory prohibition against the
open carry of firearms in a public building, it is the opinion of this office
that the open carry of firearms is not prohibited in a public building, unless
otherwise prohibited by a specific statute..."
It is worthy of noting that at the time, no legislator, Republican or Democrat,
moved to prohibit openly carried firearms in public buildings.
Before 1995, Nevada was a may issue
state for concealed firearm permits, at the sole discretion of the sheriff to
issue or not. Open carry was the only method available to the public at large
in some counties. In 1995, Nevada became a shall issue state and a perceived
need to regulate firearms in public buildings was felt, so concealed carry by
permittees was prohibited.
The 1995 amendment banned concealed
firearms in virtually every type of public building.
In 1997, the law made a minor change: "must" to "shall.”
Then, in 1999, the law changed to only locations with signs and metal detectors
at each public entrance, plus airports, schools, and colleges.
There was a concern that occupants of a posted building would be unable to
protect themselves, which resulted in a loosening of the statute.
NRS 202.265 prohibits firearms on
the grounds, including the parking lots, of schools, colleges, universities,
and childcare facilities. It is important to note that should this bill be
signed into law, otherwise ostensibly lawfully armed citizens would become
criminals for simply having a firearm in their parked vehicle, if on library
property. NRS 202.265's provisions which bans firearms at childcare centers was
added by Senator Debbie Smith at a constituent’s request after an
unprofessional bounty hunter raided a daycare and scared the children.
Senator Smith's amendment was based on one incident
involving bounty hunters. From information available, no one was injured, but
children were scared. Poor tactics and judgement for sure, but that ought to
have been an occupational regulation issue, not a gun control issue. The
addition of childcare centers as gun-free zones was an emotional over-reaction,
but it at least had some rational basis in calls for safety. Here, SB 115 was
prompted not by validated concerns for safety, but because citizens sought
redress of a grievance.
State Preemption of
Local Firearm Regulation
The Legislature has chosen to
preempt the field of firearm regulation and reserve that power almost entirely
to itself. Preemption takes away the authority of counties, cities, and towns
(and sub-unit of government like library districts) to make their own gun
regulations, which would create a confusing and hazardous patchwork of laws.
Except for unsafe discharge of firearms, only the legislature can regulate
firearms in any manner. This has been the law, in substantially similar
language, since 1989. The pertinent sections are NRS 244.364 (counties), NRS
268.418 (cities), and NRS 269.222 (towns). Specifically, section (b) from the
essentially identical sections reads:
"The regulation
of the transfer, sale, purchase, possession, carrying, ownership,
transportation, storage, registration and licensing of firearms, firearm
accessories and ammunition in this State and the ability to define such terms
is within the exclusive domain of the Legislature, and any other law, regulation, rule or ordinance to the contrary is
null and void." [emphasis added]
On June 2, 2015 Gov. Sandoval
signed Senate Bills 175 and 240 into law. Each bill contained identical
provisions regarding state preemption of local firearm laws. This change came
about largely to eliminate Clark County's "blue card" handgun
registration system and partly to clear up discrepancies over whether or not
certain local Clark County ordinances were grandfathered.
Firearm preemption laws were
introduced by AB 147 in 1989. The bill was ultimately amended to permit Clark
County to retain its handgun registration system, as Clark County used its
influence to preserve the ordinance.
While there has never been statewide registration of firearms, Clark County
registered handguns from 1948 to 2015, originally due to concerns about the
influx of mobsters.
They specifically grandfathered Clark County's handgun registration ordinances
even while the state preempted all other local regulations. The preemption law
was amended in 2007 to fix a loophole that technically made visitors to Las
Vegas and Clark County's new Shooting Complex (and other travelers) in
violation of the law.
In regards to the District, a
citizen inquired in June of 2015 as to whether or not the district would honor
the provisions of SB 175/240. Mario Aguilar, Assistant Library Operations
Director, replied:
“The information from the recent bills
is being reviewed by the District’s legal counsel and management team.
Currently, library policy bans bringing firearms into our buildings in order to
protect the health and safety of our patrons. We are evaluating the changes in
the law, which are expected to become effective 10/01/15, and you may not bring
your firearm into the building until such evaluation is complete.”
District counsel was made aware of
the preemption laws by the public and counsel reviewed. Counsel, attorney
Gerald Welt, remarked in a private conversation, later recounted on Facebook by
the other participant, that Welt "...acknowledged the State preemption
law, but said he'll kick out open carriers anyway. He fully expects to be
sued."
Mr. Welt has never
publicly disclaimed this allegation.
As Senate Bills 175 and 240 also
invalidated any local regulations (see above citation) and required their
repeal, addition additional civil damages for anyone adversely affected by
enforcement of a preempted law. This, and the above mentioned attitude
expressed by District counsel Mr. Welt, resulted in the Flores case. The District did not feel it was subject to state
preemption laws.
The District argued in its Flores responding brief that it is a
"type of political subdivision that is distinct from counties, cities, and
towns." Later, it admits that "The strong language...leaves little
question that the Legislature intended for the amendment to apply broadly,"
but then qualifies this by arguing that since it applies specifically to
counties, towns, and cities in different chapters, that a library district is
beyond the reach of the Legislature.
The Henderson Library District
board was advised by its counsel that preemption statutes do apply (this was in
2014, prior to adoption of the enhanced preemption laws in 2015) and chose not
to prohibit openly carried firearms.
"Recently a gentleman
came in with an open carry weapon. It appeared his purpose was to challenge someone
to confront him. The admin team will meet with the district’s attorney, Brin
Gibson, and go through the applicable laws to decide what the district’s stance
should be. This may result in a policy update brought back to the Board. There
haven’t been any real problems; this was just something a little out of the
ordinary. Jim Frey asked how the situation was resolved. Angela Thornton said
staff asked him to leave. He said he didn’t have to, but did leave soon after.
He wanted to prove a point. Angela Thornton said in Oklahoma libraries are
considered government buildings where weapons are not allowed. If the Board has
any questions they should direct them to Angela Thornton. The meeting is
scheduled for October 1st.
"The admin team and branch
managers met with the library district’s attorney Brin Gibson about the open
carry issue. The law allows for a person to openly carry a firearm [holstered]
in the library, but it is against the law to carry a concealed weapon [even
with a permit] in the library. The library staff response will be to call the
police to ask any person open carrying about their intentions to ensure they
are someone who can carry legally, safely and responsibly in the library. If a
person is carrying an unholstered weapon, staff will pull the fire alarm and
call 911. Gayle Hornaday said the situation rarely occurs. On the rare occasion
a person has open carried in the library, he did so to make a statement."
This begs the question: if a library district is neither
fish nor fowl and unless specifically called out by statute, statutes cannot
apply to a library district, what do the sponsors have to fear? What is the
necessity of SB 115 if the state firearm preemption statutes do not apply to
library districts?
District Policies
The District’s stance and strategy
has remained consistent, though their words and tactics have shifted as public
pressure have increased. What one sees in the history of this issue is an
ever-changing game to outmaneuver citizens who have the law on their side. A
2011 letter from Jeanne Goodrich, the then director to a citizen states, in
part:
"As you pointed out, pursuant to
NRS 202.3673, carriers of concealed weapons can be prohibited from entering
libraries. From the District’s perspective, the same fears and concerns
carrying concealed weapons are heightened for individuals who do not have concealed
weapons permits and are carrying unconcealed weapons into libraries. In
enacting NRS 370.040 [sic, NRS 379.040], the State granted the District
authority to implement those regulations it deems reasonable and weighing the
District’s concerns of public safety versus and individual’s right to bring a
firearm into a library, the District implemented this reasonable restriction.
The law permits the District to trespass any individual in violation of this
policy and the District intends on doing so pursuant to its 'no firearms'
policy."
A 2012 letter from Robert Duren, the then deputy director,
to another citizen, seems to acknowledge only concealed firearms are prohibited
(refers to NRS 202.3673 in context of a denial of written permission to carry a
concealed firearm by a citizen) cites NRS 379.040.
"Your letter dated September 12,
2012 was referred to me as I oversee public services for the Library District.
Unfortunately, I cannot accommodate your request to carry your concealed
handgun into any of our library branches. It is the Library District's practice
that the Library Rules of Conduct, which states that firearms are prohibited as
outlined in NRS 202.3673, be administered fairly and equally to all patrons
visiting our facilities.
"In regards to the open carry of
your weapon, the Library District also prohibits this under NRS 370.040. The
statute grants the Library District the authority to implement those
regulations it deems reasonable and weighing the District's concerns of public
safety versus an individual's right to bring a firearm into the library, the
District implemented this reasonable restriction."
NRS 379.040
empowers the board of trustees, not administration or staff, to make
regulations. This has been the consistent source that District personnel have
claimed as their authority to prohibit firearms. The following District policy
was obtained by a private citizen (and received in similar words by others in
response to numerous emails complaining to District administration about the
policy) in November 2015. This policy is known by the District as its
“Dangerous Weapons Policy.”
"NRS 379.040 (quoted below)
requires the Trustees of the Library District to guarantee that libraries are
free and accessible to the public. The Library District bans bringing or
possessing on Library District owned premises any dangerous item, including,
without limitation, a deadly or dangerous weapon, loaded or unloaded, or
ammunition or material for a weapon."
"NRS 379.040 Library to be free
and accessible to public; regulations of trustees. The library and reading room
of any consolidated, county, district or town library must forever be and
remain free and accessible to the public, subject to such reasonable
regulations as the trustees of the library may adopt."
"A 'no firearms' sign is posted at
all public entrances to libraries. The 'no firearms' policy protects the health
and safety of the Library District's patrons, which include young children. The
Library District will reasonably enforce its "no firearms" policy by
asserting trespass claims against violators."
The NRS 379.040
power is a legislative function reserved to appointed members of the board,
presumably to avoid arbitrary and capricious regulations not subject to public
comment. Only after giving the public notice, listening to public comments, and
reasoned debate can a regulation be adopted by the Board of Trustees. The above
policy could not and should not have been made nor enforced with NRS 379.040 as
the operative statute because that section grants authority only to the Board of Trustees.
The
“Dangerous Weapons Policy” is merely an administrative response when citizens'
objections, I assert, forced them to manufacture something. Since the ‘policy’
was never approved the board of trustees, it is not an enforceable regulation because
at no time did the trustees adopt the above policy. District bureaucrats made
up the ban.
Even under the
current Code of Conduct, adopted in July of 2016, weapons are generically
banned (see below). Only the trustees have the power to enact regulations under
NRS 379.040; not administrative employees. Individual staff members are not authorized by law to
independently interpret library policy or create any unofficial practices
regarding patron conduct. Since library rules did not prohibit openly carried
firearms, staff members removing patrons engaged in such lawful activity did
doing so without justification under NRS 379.040 (and would continue to do so).
NRS 379.040 also
requires that a “library must forever be and remain free and accessible to the
public […].” Denying access to a library based solely upon the fact a patron is
legally openly carrying a firearm violates the law. Perversely, the district
has quoted the second clause, “reasonable regulations [etc.],” to justify their
ban. They can’t choose which part of the public gets free access to the
library. It is a grotesque misapplication of the law to quote one half of a
statute to justify violating its other half.
A library would
be perfectly justified under its own policy and under law to remove someone
engaged in inappropriate handling of their firearm or creating some other kind
of disruptive or rude behavior. Yet in none of the incidents where a person
openly carrying a firearm was asked to leave was disorderly conduct, other than
openly carrying a firearm (if such a thing can be considered disruption) cited
until after the fact.
The library district has repeatedly
stated that they defend their ban based on NRS 379.040 and have made no denial
prior to the Flores case that the
provisions of state firearm preemption statutes do not apply to them. It was
only in the response to the request for a preliminary injunction did the
District first publicly articulate this.
State preemption of local firearm
laws explicitly prohibits the district’s behavior. In fact, the legislature
made its intent explicitly clear, while NRS 379.040 is much more vague. The
fact that NRS 244.364 and 268.418 are coded respectively within the NRS titles
for counties and cities does not abrogate the language of subsections (a)
through (c) which are identical to each section (see below). The legislature
made its intent to invalidate any local regulation of firearms, except unsafe
discharge of firearms, and reserve all right of firearm regulation to itself.
I’m sure the library would love to imagine itself exempt, which it can’t
reasonably do.
The library distrust asserts in its
various publications that “the Las Vegas-Clark County Library District is
neither a part of the city of Las Vegas nor of Clark County.”
Perhaps they meant subordinate to? NRS 379.0221 states that the method of
consolidation was to merge the city into the county library district; the
county library district just got bigger.
“NRS 379.0221 The trustees of a county
library district in any county whose population is 700,000 or more and the
governing body of any city within that county may, to establish and maintain a
public library, consolidate the city into the county library district.”
The county library district was never abolished by law, but
rather incorporated the existing other districts into itself, thus becoming
‘consolidated.’ This wasn’t a marriage, but an adoption.
I also argue that as a consolidated
county-city library district, NRS 244.364 and 268.418 both apply to the
district because the district is the library district for Clark County, the
city of Las Vegas, and the city of North Las Vegas, and the District trustees
are appointed and may be removed by the county board of commissioners.
Furthermore, any denial that a
city-county consolidated library district is exempt from state preemption of
firearm regulation because the statutes themselves do not specifically
enumerate their application to “consolidated library districts” is ludicrous.
If that were the case, any sub-municipal district could violate any section of
the NRS that it chose, so long as the particular statute didn’t directly apply
to the given type of district. It would be impractical for the legislature to
name every type district in the state. If it were not the case, it would be
justifiable to create a ‘consolidated gun control district’ and ban the carry
of firearms anytime, anywhere in the county.
The Supreme Court of Nevada held
that: statutes “should be interpreted so as to effect the intent of the
legislature in enacting them; the interpretation should be reasonable and avoid
absurd results.”
Randomly deciding that
preemption doesn’t apply to sub-municipal districts would be unreasonable,
absurd, and ignorant of the legislature’s intent. In light of this, one must
note that subsection (c) of NRS 244.364 and 268.418 identically states: “This
section must be liberally construed to effectuate its purpose.”
"[T]o establish state control over
the regulation of and policies concerning firearms, [...] to ensure that such
regulation and policies are uniform throughout this State and to ensure the
protection of the right to keep and bear arms [...]" and "the
Legislature reserves for itself such rights and powers as are necessary to
regulate the [...] possession, carrying [..] of firearms."
July 2016 Code of Conduct Re-Write
Prior
to July of 2016 (from at least 2004), the District’s Code of Conduct stated: “3.
Firearms are prohibited as outlined in NRS 202.3673.”
Please note that NRS 202.3673 specifically prohibits
only concealed firearms in posted buildings. This was the Code of
Conduct that applied when the
Flores
incident occurred. Library officials in 2012 were referring to this rule. In
2015 and 2016, the “Dangerous Weapons Policy” was being referred to and
promulgated by the District.
In
July of 2016, the Board of Trustees, without announcement or discussion
,
re-wrote the Code of Conduct to prohibit “Possession of weapons or dangerous
items of any kind”; this would obviously include firearms. As the enhanced
provisions of state preemption were enacted in 2015, removing the ability to
enact a rule relating to firearms, this clause in the new Code of Conduct was
made in violation of law (NRS 244.364 and NRS 268.418) and without legal
authority. By statute, these regulations are null and void and must be
repealed.
The minutes and
agendas of the Board of Trustees make no mention of alteration of the weapons
policy. Unfortunately, since the scope of the re-write was not clearly
articulated in the agenda beforehand, myself and others had no notice to
comment on the policy until after the fact. I assert, but cannot prove, this
omission was hidden in general terms to prevent public protest. Interesting, in
the following board meeting, there was a discussion of safety enhancements
after some vandalism at a library, including increasing security camera
coverage, better lighting, and a security survey by senior District staff.
Clearly, not all libraries are free from crime concerns.
If
the District’s policy is enforceable,
why the re-write of the Code of Conduct language and why did Assemblywoman
Bilbray-Axelrod feel such a bill was necessary? SB 115's proposal by a seated
trustee is a tacit admission that the District cannot enforce its weapon ban
and was wrong all along. If their rule was enforceable as is, then existing
statutes provide the appropriate weight to back District policy. A new law is
not needed if something is already illegal.
Instead, the District knows it is in the wrong and has
chosen a path of obstinacy and obstruction rather than simply comply with the
law. This has been the pattern in similar cases, most notably in Michigan Open Carry vs. CADL. Knowing
that the District faces eventual defeat in the courts, this bill was proposed
to spite armed citizens and invalidate any successful legal challenge on the
merits of preemption.
Other Places
In context of other examples, both
locally and in other states, it’s clear that it is the library district that is
out of sync with establish standards. The Henderson Library District does not
prohibit openly carried firearms. The Carson City Library prohibits weapons
(oddly specifically including bombs), except by police officers or by written
permission.
Carson City is not known
to enforce this provision. No other such policy is known in the state, aside
from LVCCLD.
Of the Intermountain West states, Idaho
,
New Mexico
, Utah
,
Washington
, and Wyoming
also prohibit local authorities from making their own firearm regulations and
this openly carried weapons are legal in libraries. In Arizona
and Montana
, local public buildings
banning weapons are at local discretion with Arizona requiring secure storage
or lockboxes. Interestingly, Colorado law absolutely protects
concealed carry in public
buildings without security screening, which caused the Denver Science Museum
(similar in nature to a library) to change its policy to permit concealed
carry.
Most states have strict preemption
laws, so Nevada is not at all unusual in this regard. Ironically, California
permits
concealed firearms carried by
permittees in most public buildings.
A list of states where some form of carry is permitted in public libraries is: Alabama,
Arizona, California, Colorado, Delaware, Florida, Georgia, Idaho, Indiana,
Kentucky, Louisiana, Maine, Minnesota, Mississippi, Missouri, Nebraska, Nevada,
New Hampshire, New Mexico, North Dakota, Ohio, Pennsylvania, Rhode Island,
South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, and
Wyoming (at least 32 states).
Michigan v. CADL
Persons legally possessing firearms
(both open and concealed carry is legal) were being hassled and prevented from
doing so by the Capitol Area District Library in Lansing (CADL). Lansing police
eventually informed the library district that they would not respond unless
there is a court order in place. Consequently, the district obtained a
temporary restraining order (TRO). The restraining order enjoined non-specific
members of Michigan Open Carry, resulting in the arrest of a member at a board
meeting where he was also first served with the TRO. The next day, all the
directors of Michigan Open Carry were served. The group filed suit, which
initially resulted in the library district winning the case, which was later
overturned on appeal (with a stern rebuke for that judge).
The court found:
“Although district libraries are not
expressly included within the definition of a local unit of government for
purposes of MCL 123.1102, because we are dealing with regulation by a
quasimunicipal governmental agency in an area that is regulated by the state,
we are bound to apply Michigan’s doctrine of field preemption in determining
whether a district library is free to regulate firearm possession.”
The suit found that while the Michigan library statute
authorizing library regulations could pertain to firearms, it was overruled by
the preemption statute. The preemption statute applied, even though the library
did not meet the given definition of a local unit of government, because:
“Although district libraries have the
authority to adopt bylaws and regulations and do any other thing necessary for
conducting the district-library service, as stated earlier, this Court has held
that a district library is a quasi-municipal corporation, i.e., a governmental
agency authorized by constitution or statute to operate for and about the
business of the state.”
“Excluding a district library from the
field of regulation—simply because it is established by two local units of
government instead of one—defies the purpose of the statute and would
undoubtedly lead to patchwork regulation.”
Seattle, Washington
The Seattle Public Library dropped
its preempted ban of firearms in November of 2013. This was the result of a few
emails from a concerned citizen, Dave Bowman. The city attorney told
authorities that he doubted their ban could survive a legal challenge. The
fight with the Seattle library had begun in 2007, but only came to a head years
later, in light of Chan v. Seattle,
which found that Seattle's ban on firearms in public parks was illegal. In this
case, the Seattle library did the right thing.
An opinion from the Washington
Attorney General affirmed that the state preemption statute "fully
occupies and preempts the entire field of firearm regulation."
Conclusion
A library is not like a school. A
library is held open for public use without requiring invitation or
reservation. They are relatively open facilities, without control over who
comes in and out. If the same argument for keeping guns out schools are used to
support banning them at libraries, then the same arguments in favor of campus
carry can be used in rebuttal. Simply because children visit libraries and
parents use libraries are unsupervised, free afterschool care, and libraries
imply learning, it does not make a library a school.
Libraries,
especially in Las Vegas, often are centers for the homeless, some who have been
known to cause issues that have, and can easily escalate to violence. Many do
not feel safe in the areas where some libraries are located. Should they be
forced to go unarmed when visiting a library? While violence at libraries is
rare, violence nearby is sadly common. In the past, even the areas beyond the
Capitol were considered unsafe.
Under this bill, even a citizen sensitive to the library's position would be
committing a crime if he left his gun discreetly in his car. Should parents be
forced to subordinate their children's and their own safety to mollify the
feelings and satisfy the opinions of others? Should behavior be banned, not
because it is dangerous or harmful, but because someone with influence can get
a law made?
What
problem, what danger, does this bill seek to remedy? There is no danger,
unfounded opinions of those who oppose an armed citizenry aside, to the public.
The only problem here is that citizens stood up for their rights and resisted
officials’ actions to subvert and violate the law on their whim. The real
danger is that if an official doesn’t like the law, they can simply change what
the law says. Citizen activism, the heart of our democracy, is stymied if a
legislature can simply re-write the law anytime citizens stand against
government abuse of the law.
Had the District
complied with the law, this would never have been an issue. No lawsuit, no
legislation, no news stories. The District could have gone the way of
Henderson, but the District decided to stand for personal animus instead upon
responsible public administration. Make no mistake: the only controversy is
that which the District itself caused and the only danger is to the state and
federal constitutional right to bear arms. If this bill goes into law, it will
have a chilling effect for anyone who challenges a government over-reach of
law.
The danger of this bill is an
erosion of the right to armed self-defense. If a pet peeve of a legislator can
grow into a criminal prohibition, what is to stop the legislature from
infringing on the right to bear arms wherever a connected and powerful public
figure wishes to have guns banned? I allege this bill is personal and the
circumstances for its "necessity" are entirely because of the illegal
actions of the Las Vegas Clark County Library District and its trustees. This
bill is a cover-up for those actions. Passing this bill would reward that bad
behavior.
SB 115 should not become law.
The original act stated: “The provisions of this act apply only to ordinances
or regulations adopted on or after the effective date of this act.” The
legislative record clearly states the legislative intent was to preserve the
Clark County handgun registration ordinance. 1989 Statutes of Nevada, Page 652. Chapter 308. (AB147 Sec. 5)
