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Another Early Post-Heller Second Amendment Case:

It's U.S. v. Dorosan (E.D. La.), in which defendant -- a postal worker -- was found guilty last week of possessing firearm on postal property. The postal worker had a gun in the glove compartment of his car, which was parked in the Post Office lot; but this was found because a postal inspector, Norbert Lewis, "discovered a black canvas bag on the workroom floor next to a letter case for Route 5301. Said route was worked by the defendant ... on the previous day. Lewis did not know to whom the bag belonged so he opened the bag and found a magazine with twelve (12) rounds or .40 caliber hand gun ammunition and three (3) empty shell casings in the bag."

The magistrate judge's opinion rejecting Dorosan's Second Amendment challenge was filed last Monday; the discussion is fairly long, but I thought I'd offer a few excerpts:

Both Heller and Emerson [the 2001 Fifth Circuit case that anticipated the Heller individual rights ruling] ... make it clear that the “right to bear arms” –- albeit an individual fundamental right of all Americans secured by the Second Amendment –- is not unlimited....

The Property Clause of the United States Constitution grants Congress the right to regulate federal property. It provides: “The Congress shall have the Power to dispose of and make all needful Rules and Regulations respecting the territory or other Property belonging to the United States....” The Fifth Circuit has routinely upheld federal regulations that are designed to promote workplace and public safety on government property....

Clearly, 39 C.F.R. § 232.1(1)[,] which bans possession of weapons solely on postal property is not unconstitutional as applied. Neither Heller nor Emerson involved gun control regulations banning possession of “arms” on federal property. Indeed, the Supreme Court in Heller described the District’s statute as a law that “totally bans handgun possession” extends to the home and “requires that any lawful firearm in the home be disassembled or bound by a trigger lock at all times, rendering it inoperable.

The regulation at issue in this case is far more limited in application in that it (1) applies only on the confines of properly noticed postal property, (2) is sanctioned by both the Property and Postal Clauses of the U.S. Constitution and (3) falls within the Heller Court’s category and non-exhaustive list of excepted longstanding prohibitions on carrying firearms –- i.e., “sensitive places such as schools and government buildings.”

Indeed, federal law (OSHA) requires employers to abate workplace hazards and encourages employers to take measures to prevent gun-related injuries. Surely, the United States Postal Service would be remiss if it failed to practice what federal law requires. Without question, § 232.1(1) bolsters the United States Postal Service’s zero tolerance for workplace violence and is a regulation designed to maintain safety and order on postal property. 18 U.S.C. § 930 (a), which prohibits possession of dangerous weapons, serves the same purpose within federal facilities. Congress has the authority to regulate safety of the post office and its property, notwithstanding the individual right to bear arms in the home, “where the need for defense of self, family and property is most acute.”

The ban at issue does not affect the right of all individuals to bear arms at home or traveling in a vehicle to and from work through high crime areas. Its reach does not extend beyond the noticed, gated confines of United States Postal Services’ property. It is narrowly tailored to effect public and workplace safety solely on postal property consistent with the Property and Postal Clauses. Similarly, 18 U.S.C. § 930(a) criminalizes knowing possession of dangerous weapons, but only within the confines of a federal facility/building. Regulations forbidding the possession or carrying of firearms “in sensitive places” such as federal and/or postal property abound; these longstanding prohibitions have been upheld.

I think the invocation of an enumerated Congressional power as a counterweight to an individual right -- what I call the Constitutional Tension Method -- is a mistake. All things that Congress does must theoretically be pursuant to some enumerated power. The D.C. gun ban was enacted, indirectly, through the enumerated power to legislate for the District of Columbia (though Congress exercised that power by letting the D.C. City Council enact ordinances, subject to the possibility of Congressional repeal). The point of the Bill of Rights, whether we're talking about the First Amendment or the Second or the Fourth or any other, was to constrain Congress in the exercise of its powers. (I wrote about this in the First Amendment context in this article.)

I also think the argument based on federal health and safety law is at the very least too cursory, and likely unsound. The USPS "would be remiss if it failed to practice what federal law requires," but federal law doesn't require gun bans by employers, and even if it did there would still be the question of whether such a requirement is constitutional under the Second Amendment. The court just seems to be assuming that the federal law is constitutional, without explaining why this is so.

Nonetheless, the other arguments may well be correct, especially given the language in Heller; I can't speak with complete confidence about the subject. I just wanted to flag my disagreement with the reliance on the enumerated power and on OSHA.

Note: While I was at first skeptical about the claim that "The ban at issue does not affect the right of all individuals to bear arms at home or traveling in a vehicle to and from work through high crime areas," I take it that the court is assuming (quite likely correctly) that Dorosan could have parked the car on a public street outside the post office.

Houston Lawyer:
Since when does a general authority to regulate override a specific provision regarding what cannot be regulated? The entire Bill of Rights would be useless under this theory.
7.7.2008 2:08pm
Bill Poser (mail) (www):
The application of no-gun rules to parking lots as in this case is something I find worrisome because, as far as I can see, in most cases the rationale for banning guns within a building does not extend to the associated parking lot, especially if the guns are kept in the glove compartment or trunk. And on the other hand, applying the ban to the parking lot in many cases does impair the right to carry guns elsewhere. For example, I once worked at a campus where the nearest off-campus parking was two miles away, down a large hill. While I can understand the university not wanting people carrying guns to class, what business of theirs was it whether I kept my rifle, locked, unloaded, and out of sight, as required by law, in my truck?
7.7.2008 2:08pm
Jim at FSU (mail):
Enumerated powers can't be exercised to extinguish rights. That's the whole point of listing the rights. It's an entirely separate ground upon which you can strike down a law.

Also, isn't there an exception to the postal weapons rule for when it isn't illegal under state law (ie, with a carry permit). It's been a few years since I read the relevant regulation so I'll have to check.
7.7.2008 2:08pm
Jim at FSU (mail):
Nevermind, no exception. Maybe that's a new one. Maybe I'm thinking of the exception in 18 USC 930.
7.7.2008 2:13pm
Repeal 16-17 (mail):
Many federal and State judges will resist Heller, just as the 14th Amendment was resisted by many federal and State judges shortly following its adoption, by reading it in unusually narrow ways.
7.7.2008 2:14pm
Railroad Gin:
The better argument would have been that Heller only applies to possession within the home. The "to bear" part was clearly left open.

In a lot of states its perfectly legal to carry a loaded gun in the passenger compartment even without a CCW. It would be interesting to know what percentage of gun onwers are committing a felony whenever they mail a package. This is similar to the gun free school zone. Just about anyone who goes hunting or target shooting probably drives within 1000' of a school and is also committing a felony.

Laws like this, if obeyed, obviously do infringe on the right to bear arms. They criminalize ordinary conduct which is legal under state law.
7.7.2008 3:07pm
Kirk:
Eugene,
I also think the argument based on federal health and safety law is at the very least too cursory, and likely unsound.
I assume you're using "unsound" in a technical legal sense. It's certainly insane, as it follows the venerable but totally-nutcase "Oh, But Criminals Will Obey This Law" principle.

Railroad Gin,

The revised Gun Free Schools Act (whatever it's officially called, and notwithstanding the entire thing is patently unconstituional in the first place), does contain many exceptions, including this one:
(2) (B) ... (iii) that is (I) not loaded; and (II) in a locked container, or a locked firearms rack that is on a motor vehicle;
Here in WA, carrying loaded handguns in a vehicle requires a CPL, and carrying loaded long guns in a vehicle is simply banned outright, so being in a legal condition for moving your firearms about under state law gets you compliant, or pretty close to it, for the federal requirement too. The only exception is if your vehicle has neither a trunk nor a gun rack.
7.7.2008 4:24pm
NOLA Lawyer:
Anyone delivering mail in Gretna, Louisiana should be required to carry a firearm.
7.7.2008 4:48pm
whit:
WA does have a car exception, fwiw, for guns on campuses. Guns are banned on High School/elementary school (but not College) campuses. However... It is legal to have a gun IN THE CAR but you must leave it in the car.

This perfectly applies to the type of situation mentioned. If guns were banned even from the car on campus, then no parent could carry if any part of their trip took them to the school to pick up their kids.

I wonder if the postal reg's have a Law Enforcement exception? I have no idea. I have worn my firearm numerous times while going to the post office... Of course, if it IS illegal, I must add that these events were all so long ago that they are outside the statute of limitations :)
7.7.2008 6:17pm
FWB (mail):

The D.C. gun ban was enacted, indirectly, through the enumerated power to legislate for the District of Columbia (though Congress exercised that power by letting the D.C. City Council enact ordinances, subject to the possibility of Congressional repeal).


Interesting since delegation of a previously delegated power, and one that includes a requirement that the delegation is exclusive is a breach of trust by Congress. If one reads Article I, Section 8, paragraph 17 correctly, the DC council cannotpass any laws, Congress cannot delegate this authority because the charge is for Congress to exercise "exclusive legislation" not simply overriding powers.

Second, The 2nd amendment is latter law and as indicated in the preamble circumscribes ALL powers delegated as prior law in the original Constitution. The government only tries to illegitimately and unconstitutionally claim power to regulate arms.

Lets see, Barron states that the BoR applies solely to the federal government and the preamble makes an absolutely clear statement concerning the reason for the amendments "OF" the Constitution (They are not amendments "to" the Constitution.) The 2nd overrides the authority to make all rules and regulations for the territory and property with respect to Arms under the common latter law versus prior law. But of course the SC takes it in chews it up and shats it out differently because they and only they have the knowledge and the power and the "courage" to know what the words truly mean.
7.7.2008 6:49pm
Tony Tutins (mail):
While I fervently support the Second Amendment, I remember how the phrase "going postal" came to be coined. I'm just as happy that postal workers don't have access to their firearms while in the building.
7.7.2008 8:19pm
Jim at FSU (mail):
Don't have legal access. The ones who are interested in shooting up the office will just disregard the rule on their last day.
7.7.2008 9:15pm
whit:

While I fervently support the Second Amendment, I remember how the phrase "going postal" came to be coined. I'm just as happy that postal workers don't have access to their firearms while in the building


Except you are a victim of Media hysteria. Statistically speaking, postal workers were less likely than many other types of workers to engage in gunplay at work.

But there are a LOT of postal workers, so even though the incidents are very very rare, it SOUNDS common.

It's like school shootings. Kids are MUCH safer from gun violence IN school than outside it. But the media makes you think the schools are freefire zones.

More kids die from SCHOOL SPORTS than school shootings
7.7.2008 9:59pm
ReaderY:
Heller made an express exception for sensitive areas such as government business. The scope of this exception strikes as the sole legitimate argument. The ammunition, found within the building itself, would come within even a fairly narrow construction of the exception. And a plausible broad interpretation would include the entire government building property, parking lot and all.

The decision seems within the range of possible legitimate interpretations of the express "government buildings" exception.

I agree the Heller exception argument is the only one that really addresses the issue.
7.7.2008 10:38pm
Tom Shipley:
The standard disclosure: "IANAL" applies.

Do I correctly recall a federal court ruling whereby the family automobile is an extension of the "home" with respect to the fourth amendment. And, if so, how can a firearm in the glove compartment be subject to discovery?

TS
7.8.2008 12:29am
Crafty Hunter (www):
Jim (at FSU), I wonder what to make of the reasoning offered by a Ken Hanson (an attorney for the Buckeye Firearms Association in Ohio) regarding concealed carry of a weapon with a state permit, within federally regulated post offices.

I, too, had understood it to be legal. Perhaps this is a mistaken belief. The material at the referenced link is too long to briefly excerpt, so read it for yourself. It's apparently written before the Heller decision, but seems not to be affected by it, given the wording in Heller. :(
7.8.2008 10:51am
Crafty Hunter (www):
Jim (at FSU), I wonder what to make of the reasoning offered by a Ken Hanson (an attorney for the Buckeye Firearms Association in Ohio) regarding concealed carry of a weapon with a state permit, within federally regulated post offices:

http://www.buckeyefirearms.org/ [REMOVE THIS PLUS SURROUNDING SPACES] Concealed-carry-in-a-post-office-may-lead-to-rude-awakening

I, too, had understood it to be legal. Perhaps this is a mistaken belief. The material at the referenced link is too long to briefly excerpt, so read it for yourself. It's apparently written before the Heller decision, but seems not to be affected by it, given the wording in Heller. :(

(BTW, the awful presentation of the link is because, first, the "Link" tag is silently disallowed, and second, there is a brain dead sixty character limit on any "word", which can be avoided by using a link tag, only the link tag is silently disallowed. Jesus Christ on a pogo stick).
7.8.2008 10:58am
Crafty Hunter (www):
Jim (at FSU), I wonder what to make of the reasoning offered by a Ken Hanson (an attorney for the Buckeye Firearms Association in Ohio) regarding concealed carry of a weapon with a state permit, within federally regulated post offices:

http://www.buckeyefirearms.org/ [REMOVE THIS PLUS SURROUNDING SPACES] Concealed-carry-in-a-post-office-may-lead-to-rude-awakening

I, too, had understood it to be legal. Perhaps this is a mistaken belief. The material at the referenced link is too long to briefly excerpt, so read it for yourself. It's apparently written before the Heller decision, but seems not to be affected by it, given the wording in Heller. :(

(BTW, the reason for the awful presentation of the link is because first, the Link tag and any double quote marks for that matter are silently disallowed, and second because there is a brain dead sixty character limit on any word, which can be avoided by using a link tag only it's silently disallowed. It took many tries to actually post this somehow. Jesus Christ on a pogo stick).
7.8.2008 11:05am
Crafty Hunter (www):
Jim (at FSU), I wonder what to make of the reasoning offered by a Ken Hanson (an attorney for the Buckeye Firearms Association in Ohio) regarding concealed carry of a weapon with a state permit, within federally regulated post offices:

http://www.buckeyefirearms.org/ (REMOVE THIS PLUS SURROUNDING SPACES) Concealed-carry-in-a-post-office-may-lead-to-rude-awakening

I, too, had understood it to be legal. Perhaps this is a mistaken belief. The material at the referenced link is too long to briefly excerpt, so read it for yourself. It's apparently written before the Heller decision, but seems not to be affected by it, given the wording in Heller. :(

(BTW, the reason for the awful presentation of the link is because first, the Link tag and any double quote marks for that matter plus square brackets are silently disallowed, and second because there is a brain dead sixty character limit on any word, which can be avoided by using a link tag only it's silently disallowed, plus on every fail in latter attempts the text reverted to an earlier version. It took many tries to actually post this somehow. Jesus Christ on a pogo stick).
7.8.2008 11:09am
Crafty Hunter (www):
Since my email seems to have been lost, it seems appropriate to ask here that the last three of the four essentially duplicate posts above be removed. The one to keep is the short version.
7.8.2008 9:07pm
James Hall (mail) (www):
Responding to the point made by Jim at FSU. The postal regulations [39 C.F.R. § 232.1(1)] do provide an exception:

"Notwithstanding the provisions of any other law, rule or regulation, no person while on postal property may carry firearms…"

The regulation doesn't seem to withstand Federal law under Title 18 U.S.C. § 930 which provides the following [excerpted]:

a)Except as provided in subsection (d), whoever knowingly possesses or causes to be present a firearm or other dangerous weapon in a Federal facility (other than a Federal court facility), or attempts to do so, shall be fined under this title or imprisoned not more than 1 year, or both.
(d) Subsection (a) shall not apply to—

(3) the lawful carrying of firearms or other dangerous weapons in a Federal facility incident to hunting or other lawful purposes. [emphasis added]

So how does the court justify its opinion? Regulations do not override law. Was this argument not raised? Isn't individual carry for the purposes of self-defense a lawful purpose? Regardless, unless he was keeping the arms on the property for criminal purposes, his purpose would be lawful, correct? How did they find it in his car anyway, did he give consent to search or was the bag "on the workroom floor next to a letter case for Route 5301" sufficient probable cause?

Hmmm….
7.9.2008 6:09pm