Non-resident open-carry.

[Bung]

I know MI and IN share reciprocity, but if my memory serves, MI has a registration requirement.  I'm wondering if I can legally open-carry in PFZ's with my IN permit or conceal carry in non-PFZ's with my IN permit since the pistol won't be registered.

I'm also concerned that MI is writing laws that prevent the carry of a pistol into a church.  Did MI miss the memo about separation of church and state?

[FASBOLD]

I you are an out of state resident with a conceal carry permit from that state that is recognized by MI, then you follow the MI rules. Your pistol is covered by the IN law. You only have to register a pistol if you are a resident of MI.

If you want to OC in the pistol free zones, you need to have your conceal carry permit, because you will be asked if police ate called.

A church is private property. You can't conceal there without permission from the appropriate person or body, but you can open carry if you have a conceal carry permit. Different denominations have different rules. In some the pastor can give the permission, in others there is a board or council that have to do their process to do the approval. I would get it in writing just for CYA purposes, for any place that gives you permission to CC or OC.

I think the idea of limiting conceal carry in places of worship was to give churches/synagogues/mosques the power to control the presence of guns with the force of law. As private property, they would already have that power, this just made it explicit.

How would you know someone is carrying concealed? This "forces" people to not do this. But barring a security checkpoint with metal detectors or a pat down search, it requires those with a CPL to either OC or not carry. I wonder how many ignore this and CC anyway?

However, the "magic check box" allows the "right kind of people" to conceal wherever they want, even if the private property owner doesn't want them to do so.

[gryphon]

I wonder how many ignore this and CC anyway?

A lot.  And it's not that they all ignore the law, some actually don't know that you can't.  They figure that if they have a CPL they are good to go.  Ask me how I know. 

[Bung]

Thank you for clearing that up.  As for the churches, why not make it illegal to carry everywhere so that everyone can have the force of law?  It just seems like MI is asking for an ACLU suit.  Giving signs the force of law would accomplish the same thing and it is already illegal to trespass which also accomplishes the same thing.

[Jeff]

But the private property owner can still tell them to GTFO.

[ohiooc]

If you want to OC in the pistol free zones, you need to have your conceal carry permit, because you will be asked if police ate called.

I have an alternate view. 

Without a MICHIGAN permit, You cannot knowingly carry (open or concealed), or have reasonable cause to believe you are carrying (openly or concealed) within 1000' of a Michigan school.

If you do, you are in violation of 18 U.S. Code § 922 - Unlawful acts

18 U.S. Code § 922
(q)
(2)
(A) It shall be unlawful for any individual knowingly to possess a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the individual knows, or has reasonable cause to believe, is a school zone.
(B) Subparagraph (A) does not apply to the possession of a firearm—
(i) on private property not part of school grounds;
(ii) if the individual possessing the firearm is licensed to do so by the State in which the school zone is located or a political subdivision of the State, and the law of the State or political subdivision requires that, before an individual obtains such a license, the law enforcement authorities of the State or political subdivision verify that the individual is qualified under law to receive the license;
(emphasis mine)

18 U.S.C. § 921(a)(25):
The term "school zone" means—
(A) in, or on the grounds of, a public, parochial or private school; or
(B) within a distance of 1,000 feet from the grounds of a public, parochial or private school.

18 U.S.C. § 921(a)(26)
The term "school" means a school which provides elementary or secondary education, as determined under State law.

Penalty
18 U.S.C. § 924(a)(4) establishes the penalty for violating GFSZA:

• Whoever violates the Act shall be fined not more than $5,000, imprisoned for not more than 5 years, or both. Notwithstanding any other provision of law, the term of imprisonment imposed under this paragraph shall not run concurrently with any other term of imprisonment imposed under any other provision of law.
• A conviction under the GFSZA will cause an individual to become a "prohibited person" under the Gun Control Act of 1968. This will bar them from legally owning firearms for the rest of their life.

(emphasis mine)

Supporting documentation from the DOJ:    http://upload.wikimedia.org/wikipedia/commons/f/f8/Atf07252013gfsza.pdf
Quote from the letter:
"The law clearly provides that in order to qualify as an exception to the general prohibition of the GFSZA, the license must be issued by the State in which the school zone is located or a political subdivision of the State.  A concealed weapons lisense or permit from any other State would not satisfy the criteria set forth in the law."

IANAL...Find your own

[CV67PAT]

I have an alternate view. 

I have an alternate view also that is supported by MCL 750.237a (5) (c) An individual licensed by this state or another state to carry a concealed weapon.

IANAL either... http://legislature.mi.gov/doc.aspx?mcl-750-237a

[m.marino]

I wonder how a state can write a law to nullify U.S.C 18 subsection 922 as it pertains to interstate in foreign commerce as stated in the law itself and as such has no bearing on a state nor schools in a state. It could also be seen as a direct violation of the 9th and 10th amendments. Would cost a good bit of money and I bet could get rather ugly. They will of course use the good old Nazi slogan of "For the Children" to paint any group opposed to it as heartless thugs who want children endangered by guns carrying crazies.

Still might be an interesting fight and enough grass roots activity could see it challenged as there is a strong dislike/distrust of government and federal over reach currently. -Marino

[ohiooc]

I have an alternate view also that is supported by MCL 750.237a (5) (c) An individual licensed by this state or another state to carry a concealed weapon.

IANAL either... http://legislature.mi.gov/doc.aspx?mcl-750-237a

I understand your point that you may not be charged with a Michigan crime pursuant to MCL 750.237a (5) (c), but you could be charged with a Federal Crime pursuant to 18 U.S. Code § 922.  That was the point of my original post.

The Supremacy Clause is the provision in Article Six, Clause 2 of the U.S. Constitution that establishes the U.S. Constitution, federal statutes, and U.S. treaties as "the supreme law of the land". It provides that these are the highest form of law in the U.S. legal system, and mandates that all state judges must follow federal law when a conflict arises between federal law and either the state constitution or state law of any state.

• Article Six, Clause 2 of the U.S. Constitution:
  This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Nullification is the legal theory that states have the right to nullify, or invalidate, federal laws which they view as being unconstitutional; or federal laws that they view as having exceeded Congresses’ constitutionally authorized powers. The Supreme Court has rejected nullification, finding that under Article III of the Constitution, the power to declare federal laws unconstitutional has been delegated to the federal courts and that states do not have the authority to nullify federal law.  See Ableman v. Booth, 62 U.S. 506 (1859), Cooper v. Aaron, 358 U.S. 1 (1958).

MCL 750.237a (5) (c) does not preclude a federal charge, nor provide a positive defense in a federal case.  Think of it as "Federal Pre-emption" on the posession of firearms in a GFSZ.

I don't know if an aggressive prosecutor could invoke Article 6, Clause 2 to force a State Judge to follow federal law in a state case. 

IANAL...Be careful with the choices you make.

[ohiooc]

I wonder how a state can write a law to nullify U.S.C 18 subsection 922 as it pertains to interstate in foreign commerce as stated in the law itself and as such has no bearing on a state nor schools in a state. It could also be seen as a direct violation of the 9th and 10th amendments.
-Marino

I don't think the state can nullify a federal law, see my post on nullification. 

The part in 18 U.S. Code § 922 about "a firearm that has moved in or that otherwise affects interstate or foreign commerce" is what gives the federal law validity under the constitution.  Congress wanted to pass a GFSZ law, but the law had to be covered under the enumerated powers of Article I Section 8 of the Constitution.  There are no enumerated powers about schools.  However, Congress has the power to regulate interstate and foreign commerce. 

United States Constitution (Article I, Section 8, Clause 3)
The Congress shall have power .... To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

Guns move in or otherwise affect interstate commerce or said another way, guns have participated in interstate commerce....raw materials (ore), smelting, parts manufacturing and final assemply are done in different parts of the country, guns are shipped between states or imported.  Since they have participated in interstate or foreign commerce, Congress has the power under the constitution to regulate them.  Congress used the third clause of the enumerated powers to regulate firearms in school zones.

Even if you could argue that ALL the materials were mined in Michigan, you would have to prove all the machines used were also made in Michigan and there was ZERO interstate commerce.  Where did the printer that the gun maker use to print his invoices come from?  Interstate Commerce.    Where did the front loaders used in Iron Mountain to mine your Ore come from? Interstate Commerce.   

Proving there was NO interstate or foreign commerce is a Tall Task.  Particularly in this case, where we are talking about non-resident open-carry.

How did the gun that was made in Michigan, with Michigan input stock and Michigan machines and no money paid to anywhere outside Michigan in the process, get to the non-resident state?  Interstate commerce!

On the 9th and 10th ammendments, that is a bit stickier. 

The 10th is easier, let's start there.  The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.  In this case, the constitutionality of the GFSZA is not in question and prosecuted cases have been upheld.  I think that since the ability to regulate interstate commerce IS an enumerated power, it is not a violation of the 10th ammendment, because regulating interstate commerce IS delegated to the United States by the Constitution.

I've struggled with the 9th in general.  The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.  Best case law I can find..."The Ninth Amendment explicitly bars denial of unenumerated rights if the denial is based on the enumeration of certain rights in the Constitution, but this amendment does not explicitly bar denial of unenumerated rights if the denial is based on the enumeration of certain powers in the Constitution."  United Public Workers v. Mitchell, 330 U.S. 75 (1947).  I read the emphasized portion to mean that if a law is enacted using enumerated powers in the constitution (GFSZA), it can bar the denial of unenumerated rights (the ability to bear arms in a school zone).  As I have said, IANAL and the 9th is a difficult concept for me.

Again, IANAL....be careful with your decision making.

[CV67PAT]

I understand your point that you

may not be charged with a Michigan crime pursuant to MCL 750.237a (5) (c), but you could be charged with a Federal Crime pursuant to 18 U.S. Code § 922.  That was the point of my original post.


IANAL...Be careful with the choices you make.

I suppose we could look at all of the following cases that were prosecuted in Michigan pursuant to 18 U.S. Code § 922:









































Interesting. I see your point.[/list]

[TheQ]

18 USC 922 in every case I've seen has been used as an add-on to another charge: dealing drugs on school property, Assault/Battery on school property, etc -- never have I seen it as a stand alone charge.

This isn't to say it couldn't be charged stand alone...and if it was would it hold up to scrutiny if a competent lawyer challenged it?

[ohiooc]

18 USC 922 in every case I've seen has been used as an add-on to another charge: dealing drugs on school property, Assault/Battery on school property, etc -- never have I seen it as a stand alone charge.

This isn't to say it couldn't be charged stand alone...and if it was would it hold up to scrutiny if a competent lawyer challenged it?

I love MOC.  I think you guys are intelligent, organized and extremely helpful.  Being an Ohio resident with property in Michigan, I'm happy to have MOC.  I've told the open carry organizations in Ohio more than once to look at, and contact MOC for help establishing their organization and approach.

That being said, on a number of levels, I'm really surprised that the leadership of MOC is, with a wink and a nod, encouraging violation of federal law.  Let alone condoning an activity which may put it's forum readers at risk.  Really confusing.  Here are the messages I took away from your response:

• You're not really taking a risk. It's never been enforced.
• It hasn't been enforced so it must mean it WON'T EVER happen.
• If it does happen it *might not hold up to scrutiny with a competent lawyer.*

I would dare posit that the vast majority of readers here do not have the funds to fight a federal charge with a competent lawyer.  I think there are plenty of cases on the forums to prove this point, even at the state level.

I would think, at a minimum, a considered response WRT the risks/penalties associated with the activities along with the Wink and Nod MIGHT ameliorate the tacit approval of the activity and at least give individuals a broader understanding of the risks...never being able to own a firearm legally again (except through presidential pardon).

The fact is, one is committing a separate felony every time they pass within 1000' of a school.  You will probably get away with it, but that's not the point.

• Although uncommon, federal agents do make traffic stops.
• Some local officers are cross-deputized as federal agents.
• Federal Agents sometimes assist local officers in special operations, which will likely involve traffic checkpoints.
• If you are traveling through one of the many areas of Michigan that have Native-American Tribal Governments (of which there are plenty: http://michigan.gov/documents/mdcr/2012_2013_MichiganIndianDirectoryfinal_377530_7.pdf), you risk the real possibility of being pulled over by an Indian Marshall for a minor traffic violation. Indian Marshalls are United States Federal Agents.

Finally, while not a completely stand alone charge (there was Count I: Possession AND Count II: Discharge), this case is actually pretty good in context...as you will see.

Cassandra Benally. http://ca10.washburnlaw.edu/cases/2007/05/06-2277.htm

Most of the other GFSZA violation cases, as you have summarized, were clearly bad guys, and the GFSZA violation was just an add-on charge to put them away for a little longer, but Benally was target shooting with her sister and a friend (Kelly), when Kelly said he needed to go pick his younger sister up from high school. When they got to the school, another person got upset at Kelly's presence and started making threats with an aluminum baseball bat. Kelly grabbed the gun for reasons that are disputed. Benally grabbed the gun to stop Kelly from using it, apparently not believing that the threats of the guy with the bat would justify deadly force, and to try to prevent the situation from turning deadly. Kelly and Benally struggled over the gun, which Kelly had cocked, and in the struggle the gun went off, shooting Kelly in the wrist. There was a lot of he-said/she-said over this sequence of events.  And, to your point, there was the discharge of the weapon in addition to the GFSZA posession violation.

Anyway, Benally was clearly not intending to do anything wrong, and I suspect didn't realize that it was a federal crime to have the shotgun next to her in the car when they drove to the school. She did, however, possess a weapon in a GFSZ.  Then later when the fight appeared imminent, she was actually trying to remove the gun from the fight.   Whether that was the right thing to do or not, it's pretty clear that her intentions were reasonably good throughout the sequence of events.

She presented a "Need" defense on both counts.  She needed to possess the weapon (take it away from Kelly) and needed to discharge assumably for protection.  The court instructed the jury as to need on the discharge argument, but did not instruct on need for the possession.  She was acquited on the discharge charge and convicted on the posession charge.  The appeals court upheld the jury instructions (no need instructions) and the conviction on the possession charge.

She still ended up with a federal felony conviction AND, it was ONLY for possession in a GFSZ.

The broader implication of this particular case is that if you are not a Michigan resident with a Michigan permit and you are in a GFSZ and you have an "event", such as you are attacked and need to defend yourself, you are at risk of being prosecuted for a violation of 18 USC 922, both for possession and discharge.  You may be able to argue "Need", per Benally, on the discharge, but it likely will not fly on the possession charge.

I would further posit that the lawful purpose, for non-criminal types, to have a firearm while travelling through a school zone, would be self-protection.  Why else would you want to take it in a school zone?  If you use the firearm for defense, in a school zone, per what I can tell from Benally (I don't have the original documents, only the appeal to work from), you are at a high risk for violation of 18 USC 922, both for possession and discharge.  Even if you could argue that you NEEDED to discharge the weapon, as did Benally, you are still in a GFSZ with a G[un].  Benally found this out the hard way.

Given

• You have a firearm in a GFSZ without the federal protection of the Michigan CPL (non Michigan resident)
• The audience is likely not to have the funds to competently and vigorously defend a federal charge
• There is case law to support there is no "need" defense for a possession charge
• AND the reason for having it in the first place and the most likely time you will be "caught" in a GFSZ is when you have to defend yourself

Said another way, if you have an "event" in a GFSZ, as a non-resident, that includes discharge of a firearm, your risk is actually very high that you will be convicted for possession in a GFSZ pursuant to 18 USC 922.  Benally, while not a "stand alone" charge, is certainly the same situation as an "event" in a GFSZ.  No other charges than Count I: Possession and Count II: Discharge.

I would think your advice might be a bit different to those from other states that are smitten with the mitten.

IANAL...Find one if you want to find out the hard way. 

[SteveS]

I have an alternate view. 

Without a MICHIGAN permit, You cannot knowingly carry (open or concealed), or have reasonable cause to believe you are carrying (openly or concealed) within 1000' of a Michigan school.

If you do, you are in violation of 18 U.S. Code § 922 - Unlawful acts

This is correct.  If you want to carry in a school zone (as defined in the USC), you have to have a permit from that state.  It doesn't matter if the state allows an out of state permit holder to carry there.  The feds don't care and can prosecute if they want to (see Supremacy Clause).  The GFSZA has been challenged a fair number of times and has been upheld.

Yes, most of the time, this charged is tacked on to other charges.  I haven't heard of any stand alone cases.  That being said, absent some first hand knowledge or media coverage, you probably wouldn't hear about it anyway.  I would guess that 99% of cases that courts hear never get any media attention.

I would also note that you can't be charged under this law in a state court.  You would have to be arrested and charged by the feds. 

IAAL

[SteveS]

The GFSZA is a terrible law.  It was initially passed in 1990 and overturned several years after that, when the Supreme Court (surprisingly) said it was an overreach of interstate commerce.  Annoyed at this action, Congress passed essentially the same law and included some language about guns moving in interstate commerce.  One of the more frustrating parts of this was that when it was passed the second time, the GOP had a majority in both the House and Senate.  IIRC, Ron Paul introduced a bill to get rid of this law a few years ago, but it never got out of committee. 

[ohiooc]

You would have to be arrested and charged by the feds. 

IAAL

I start this with IANAL rather than end with it.  IANAL.

It is my understanding that in the case we are talking about, a non-Michigan resident, without a Michigan permit, but with a CPL from his/her home state (or other state), goes through a school zone while openly carrying a firearm and has an "event" that results in discharge of a weapon in a school zone.  There will certainly be an investigation.  At a minimum, I assume that one would notify local LE.  Under MCL 750.237a (5) (c), at least for possession in a school zone under state law one would be covered, but because there is an incident, local LE could pass information to a federal agent and they could press charges under 18 USC 922 after the fact.  The federal agent does not need to be the initial investigating officer.

[linux203]

IANAL as well...

18 U.S.C. § 922(q)
(2)
(A) It shall be unlawful for any individual knowingly to possess a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the individual knows, or has reasonable cause to believe, is a school zone.
(B) Subparagraph (A) does not apply to the possession of a firearm—
(i) on private property not part of school grounds;
(ii) if the individual possessing the firearm is licensed to do so by the State in which the school zone is located or a political subdivision of the State, and the law of the State or political subdivision requires that, before an individual obtains such a license, the law enforcement authorities of the State or political subdivision verify that the individual is qualified under law to receive the license;
(iii) that is—
(I) not loaded; and
(II) in a locked container, or a locked firearms rack that is on a motor vehicle;

cite: http://www.law.cornell.edu/uscode/text/18/922

As I read the statute, public property, such as streets, parks, state forests, federal/state/local government buildings, etc, are prohibited.  Residences and businesses, being private property, are exempted.  I previously lived within a GFSZA zone, so I did some reading.

Note the exceptions in 18 USC § 922(q)(2)(B)(iii) differ from Michigan Law and requires the container to be locked, but not in the trunk.  Out of state CPL/CWL/CCW could be unloaded and locked in the passenger compartment.  No CPL/CWL/CCW would need to be unloaded, locked, and stowed in the trunk or inaccessible to the occupants.