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Right to Open Carry Firearms Cannot be Restricted

November 2, 2012

If you show up at your neighborhood school to vote and notice someone carrying a gun, that person may not be breaking the law. If an individual has an approved CCW (Carrying a Concealed Weapon) license, s/he may openly carry a gun to the polls on election day, even in a no weapons zone of a public school.

Late last week, the Michigan Court of Appeals confirmed that, with limited exception, Section 2 of Michigan's Firearms and Ammunition Act (1990 PA 319, as amended, MCL 123.1102) (Act 319) prohibits a local unit of government from regulating the possession, licensing or transportation of pistols or other properly licensed firearms. "Possession" includes open and concealed carrying. Under this Act, properly licensed firearms may be openly carried anywhere in the state, except in those areas specifically prohibited by Act 319 and other applicable law (although the list of prohibited areas includes "school property," the prohibition does not apply to individuals licensed by Michigan or another state to carry a concealed weapon).

The case arose when the Capital Area District Library (CADL) adopted new regulations to protect library users from members of the Michigan Open Carry movement who brought exposed firearms (pistols and a shotgun) into the library's downtown Lansing branch. Learning that such conduct was not a crime, the CADL later adopted a weapons policy banning the possession of firearms on library property. When challenged, the Ingham County Circuit Court upheld the CADL's policy and granted the library a permanent injunction that prohibited carrying firearms into any CADL facility.

The Michigan Court of Appeals reversed the lower court's ruling. In Capital Area District Library v Michigan Open Carry (2012 Mich App LEXIS 2169, No. 304582), the Court  determined that state law completely occupies the field of firearm regulation to the exclusion of local units of government.  Although Act 319 does not expressly include a district library in its definition of a "local unit of government," the court of appeals recognized that its jurisprudence has held that a district library is a quasi-municipal corporation subject to the constitution and the laws of the state.

Therefore, due to field preemption, the court of appeals reversed the circuit court's ruling upholding and enforcing the CADL's weapons policy to the extent it regulates the possession of firearms. The court of appeals inferred that it was for the state legislature, not the state courts, to amend Act 319 to include public libraries (and by analogy, public schools without any exception) into those areas where the carrying of firearms is prohibited.

Notwithstanding the foregoing, our advice to public school staff is to contact the police if they see anyone carrying a gun on school property. In our opinion, public school staff are not in a position to approach or otherwise investigate an individual with a gun to determine if s/he is legally carrying it. You also may want to consider contacting your area legislators, to express concern about an apparent anomaly that allows guns in our schools .

If you have any questions regarding any of the above information please contact your Clark Hill education attorney.

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