He was ready. He had passed the concealed carry course for his home state.
A bright, laminated card demonstrated his reputable history and that he had learned to carry responsibly. He had a quality handgun. It was loaded with the same hollow-point ammunition used by his local police; he had test-fired the ammunition to ensure that it functioned in his pistol. Also, he had a pocket lithium flashlight because bad things usually happened in the dark. And he carried an extra reload in case the worst possible thing went very bad indeed. He had read a book covering the firearms and self-defense law of his state.1 He had consulted with a local attorney versed in weapons and self-defense law and carried the lawyer’s card with a 24-hour contact number.2 He has the US Concealed Carry SHIELD card to finance a defense if the worst possible thing got worse. He was ready.3 But he had to go to the post office.
Federal Gun Laws
Under federal law, guns cannot be taken into federal facilities except for “hunting or other lawful purposes.4” Most federal facilities are content with guns locked in the car while the obedient citizen submits to the imaginary security of a “no guns” policy. The Postal Service has a much more expansive policy. They have claimed regulatory authority through the parking lot and even to the public sidewalk beyond.
When concealed carry was first proposed, and every improvement since, we were told there would be blood in the streets and citizens being terrified by licensees brandishing guns.
Within the last six years, the Post Office has by federal regulation banned the collection of signatures on petitions on public sidewalks bordering Postal facilities.5 The Postal Service argued that such First Amendment activity would annoy people coming to get their mail. The district court accepted this argument granting summary judgment to the Postal Service and calling the regulation a valid “time, place, or manner” restriction on speech. It is often overlooked that all liberties carry some regulation either explicitly (such as the Fourth Amendment’s protection against “unreasonable” search and seizure) or by interpretation.
The most famous interpretation is that one’s freedom of speech does not extend to shouting, “fire” in a crowded theater.6 The burden on the government is to show that the regulation restricts a real harm to other persons; the regulation is narrowly drawn to be the lightest possible burden on the liberty restricted. Of course, many light burdens add up to a substantial burden indeed, which will impermissibly extinguish a right.
The appellate court reversed the district court’s decision implying that the regulation is overbroad. However, when the Postal Service will enact such sweeping restrictions on the favored First Amendment, the restrictions on the Second Amendment are more excessive. Federal law forbids carrying firearms or other dangerous weapons in a “federal facility.7”
The Post Office Law regulation implements this as prohibiting weapons on postal property. My administrative law professor was insistent that agencies can establish regulations implementing federal law and that these regulations have the force of law. An administrative agency from the executive branch meddling in the duties of the legislative branch is enough of a problem. When they exceed the authority of the statute it is quite the abuse of authority.
The federal statute defines a “facility” as a building or part of a building owned or leased by the federal government.8 The Postal Service regulation brazenly expands this “post office law” designed to ban weapons inside a building to the parking lot outside.9 The Postal Service is adamant that this makes driving into the parking lot with a gun anywhere in the car a federal crime. The Postal Service has its own police force and one would expect a great number of cases on this point.
The fact that there have not been a number of cases on this point shows that the great number of concealed carry licensees who stop at post offices carry discretely and do not create problems. This is significant. When concealed carry was first proposed, and every improvement since, we were told there would be blood in the streets and citizens being terrified by licensees brandishing guns. These threats are still heard, are always wrong, but are treated as valid commentary by the media. The shortage of post office cases indicates the efforts of concealed carry licensees to carry lawfully and discreetly; yet, it happens.
These rules are sometimes inconsistent. The National Park Service is required by statute to allow concealed carry in the national parks under the same conditions as in the state surrounding the park. However, the National Park Service does not allow weapons in buildings in the national parks.
The Story of Clarence Paul Dorosan
Clarence Paul Dorosan needed to go to the Post Office as badly as any man ever did; he worked there. At some point, the boss learned that he had a handgun in the car. Many persons rely on the weapon being concealed to prevent consequences. Mr. Dorosan’s case is one of many proving that this reliance is not 100 percent effective. The consequences include loss of a job, loss of a concealed weapons license, and the addition of a criminal record and jail time.10
Mr. Dorosan was charged in the United States District Court for the Eastern District of Louisiana. He was convicted; so much for the belief that good old boys let such things slide. He appealed, stating that the regulation violated his Second Amendment rights under the Heller decision. In a perfunctory one-page decision, the Fifth Circuit Court of Appeals ruled that it did not. The court ruled that the Postal Service owned the parking lot and as the property owner could make such rules and, “moreover” it was a “sensitive place” and thus subject to such rules. The argument that the Postal Service is simply a property owner is weak. Government agencies only have the authority they are given by statute. Different government agencies have different weapons rules for property they control.11
These rules are sometimes inconsistent. The National Park Service is required by statute to allow concealed carry in the national parks under the same conditions as in the state surrounding the park. However, the National Park Service does not allow weapons in buildings in the national parks. This discrepancy and other regulations are questionable. An agency cannot prevent the exercise of a constitutional right without a compelling need to do so.
The compelling need claimed by the Postal Service is that the employee parking lot used by Mr. Dorosan is also used to load mail and stage mail trucks. The court reasoned that this made it a “sensitive area.12” The Heller decision allows the government to ban weapons in sensitive areas; such areas have not been adequately defined. Because the sensitive area in question was a segregated area of the Postal Service property, the case may not affect customers in the public parking lot. For unknown reasons, the court stated that the case should not be published or used as precedent.
At one time, thieves targeted the mail because valuables were mailed. Mail cars used by the Postal Service had armed guards and pilots carrying the mail were armed. In recent decades mail crimes have involved inserting bombs, poisons, and infectious agents into the mail. Such crimes require stealth, not gunfire. Also today, stalking victims use post office boxes to avoid a record of their home address. Post offices are therefore a place where such victims can be targeted. Post offices frequently do not have parking available other than on postal premises. The lack of alternative parking makes use of postal facilities difficult to impossible.
Mountain States Legal Foundation Has Filed a Civil Suit to Overturn the Postal Service Regulation
Relief may be on the horizon. The Mountain States Legal Foundation has filed a civil suit to overturn the Postal Service regulation.13 Mr. and Mrs. Bonidy live in a rural area without postal delivery. They must pick up their mail at the post office. For self-defense, they have permits for concealed carry. While leaving their guns in the car might not be noticed, they prefer not to break the law.
For more than twenty years I have advised parties who wish to challenge the Postal Service to get a 55 gallon drum, cram it full of $100 bills, stuff them in as tight as possible, then wheel the barrel into my office; then we would talk; until then, it is just talk.
The original petition was based on the regulation being overbroad. Both sides of the lawsuit agree that postal property is federal property. This places the property within federal jurisdiction for Heller purposes and allows the Postal Service to claim that it is a “sensitive area.” The court dismissed the petition but allowed it to be amended to include a count alleging that the regulation is unconstitutional as applied to Postal parking lots. The Postal Service moved to dismiss again claiming that the couple could park elsewhere and walk. In reality, there is no other practical place to park near the post office in question. The court denied the second motion to dismiss and the case will go to trial, and probably an appeal.
For more than twenty years I have advised parties who wish to challenge the Postal Service to get a 55-gallon drum, cram it full of $100 bills, stuff them in as tight as possible, then wheel the barrel into my office; then we would talk; until then, it is just talk. The Mountain States Legal Foundation can accept donations in a more manageable form and give a tax deduction to boot. How bad can that be?14
[ Kevin L. Jamison is an attorney in the Kansas City Missouri area concentrating in the area of weapons and self-defense. ]
Please send questions to:
|Kevin L. Jamison
Individual answers are not usually possible but may be addressed in future columns. This information is for legal information purposes and does not constitute legal advice. For specific questions you should consult a qualified attorney.
- An excellent source of such books is Alan Korwin’s Bloomfield Press see www.GunLaws.com.
- The NRA’s General Counsel office in Fairfax Virginia provides referrals as does a nearby magazine.
- Composite individual, but I know several like him.
- 18 US Code §930.
- Initiative and Referendum Institute v United States Postal Service, 417 F.3d 1299 (D.C. Cir 2005).
- My friend Alan Korwin will doubtless point out that one can yell “fire” in a crowded theater if the theater is on fire.
- 18 US Code §930(a)
- 18 US Code § 939 (g).
- 39 C.F.R. §232.1(1).
- In the federal system there is seldom probation and never parole.
- These rules should be in hand and in writing when on federal property. They can be found on agency web sites or the code of federal regulations.
- United States of America v Dorosan, No. 08-31197 United States Court of Appeals, Fifth Circuit. The court in a footnotes stated that the opinion should not be published and is not precedent. Author has a copy.
- Bonidy v United States Postal Service 10-CV-02408-RPM in the US District Court for Colorado.
- Mountain States Legal Foundation, 2596 South Lewis Way, Lakewood, CO, 80227. www.mountainstateslegal.org