Firearms on military property

[mehavey]

See
http://www.gpo.gov/fdsys/pkg/CFR-201...102-74-440.pdf

102–74.44 "Weapons"

I make the assumptive leap that "federal property" includes the military post;
that the Commander has authority to enforce the reg; and
that a federal court has the authority to dispose of the transgressor.

[MLeake]

mehavey, the section you cite links itself directly to 930, which is already under debate in this thread.

Thanks for the effort, though.

This is the problem, all the regs seem to point back to a reg that, in its own verbiage, is supposed to be minimally restrictive. That's not how it is being applied.

[mehavey]

section... cite[d] links itself directly to 930

I agree

http://codes.lp.findlaw.com/uscode/18/I/44/930

But the US Code is very clear -- and not a Reg, but the actual law upon which the regs are based -- and as yet unchallenged ? (question mark)

[MLeake]

No, it is not very clear. "hunting or other lawful purposes" is pretty open-ended, unless there's a section that clearly defines what those other lawful purposes are, or better yet, a list of specifically unlawful purposes.

930 does not do that.

930 does say that the intent of the law is to be minimally restrictive, and its general focus is on sensitive areas and the interiors of administrative buildings, not the entire outdoor area of a facility.

So, when other regs use 930 for justification, we end up back in the same, aggravating circle of logic.

[mehavey]

18 U.S.C. § 930 : US Code - Section 930: Possession of firearms and dangerous
weapons in Federal facilities
(a) Except as provided in subsection (d),...
     (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.

As a Commander, the hunting part is clear, at my discretion, and for the most part generally supported here at Belvoir as it has at every [large] base I'd ever been posted to.

Now "the other lawful purposes" part I also take to be at my [commander's] discretion to invoke orders having the power of law (i.e., lawful), and generally covers military members taking personal weapons to-and-fro/on-base to off-base to/from open post ranges and/or sanctioned events or locations (etc, etc, etc)

While a commander's orders have the power of law over military personnel, as a commander I would assume the prerogative of detaining civilian personnel found in violation (depending on circumstances) and let the marshals and federal court sort it out.

So far (and that's a question mark again), the courts have agreed with that implementation.
Until the courts do not, that's de facto law.

And as Peetzakilla notes, I wouldn't test it myself.

[mehavey]

In general, I agree w/ a commander's prerogatives to issue lawful regulations as they are held personally & totally responsible for anything that happens in his command. Unfortunately, recent history has increasingly made weapons crimes something which are not the fault of the individual, but that of "the System." The commander [and everyone else in the command chain] then gets nailed because it's their fault some idiot went postal.

So they minimize their exposure by what they [and the courts] consider "reasonable" regulation. Sometimes they go overboard (as happened at Ft Carson) and get reined by legislation. Sometimes they get caught in unfortunate circumstance resulting from their "reasonable" strictures (as in Ft Hood).

Personally, I'd consider giving First Sgts and company commanders-&-up CCW authority as they are under my direct control and extensions of command authority. But then I'm a TROG and get to watch from the sidelines now....

[Slamfire]

A web search shows statements as such:

http://www.vance.af.mil/news/story.asp?id=123194229

Per Department of Defense Instruction 5200.08, the wing commander is granted "the responsibility and authority to enforce appropriate security measures to ensure the protection of DOD property and personnel assigned, attached, or subject to their control."

Vance Installation Security Instruction 31-101 states "no person shall bring onto this installation, or while on this installation have in their possession, any firearm or other dangerous weapon."

The Vance instruction also states, "Concealment of firearms or dangerous weapons on one's person, other than firearms or dangerous weapons authorized by the 71st Security Forces Squadron commander, the installation commander or higher authority, is prohibited."

Violations of these orders can and will be prosecuted with up to one year imprisonment under Title 50 U.S.C. Section 797, or through Article 92, "Failure to Obey Order or Regulation."

Did not find a phone number at Vance Air Force Base, but USMC base Camp Pendleton has contact information on their page about weapons registration.

Anyone who wants to argue the law will probably be forwarded to someone who know the law.

http://www.marines.mil/unit/basecamp...istration.aspx

For questions concerning weapons registration aboard Camp Pendleton contact the Provost Marshal's Support Services Division at (760) 725-0819 / DSN: 365-0819 - Fax (760) 725-0820 / DSN: 365-0820.

If you really want to test the legality of the thing, get arrested. Just spouting opinions on a web page won't change a thing. But if you get arrested you can appeal your conviction all the way up to the Supreme Court.

[brickeyee]

No, it is not very clear. "hunting or other lawful purposes" is pretty open-ended, unless there's a section that clearly defines what those other lawful purposes are, or better yet, a list of specifically unlawful purposes.

The you are invited to make a case when you are found to have violated what every other person has tried to tell you is how the law is interpreted.

You do not get to define "lawful purposes" and if your activity has not been identified as a lawful purpose by the authority having jurisdiction over the facility you will lose.

If they have not identified anything, there are NO lawful purposes.

Good luck in your case.

You are going to need it.

You might want to review all the applicable case law, since some is very likely to be out there.
It carries the same weight as the statute law.

[Don H]

Looks like this statute is what I've been looking for.. I'll have to ponder it a bit. Thanks, Slamfire!

50 U.S.C. § 797 : US Code - Section 797: Penalty for violation of security regulations and orders
(a) Misdemeanor violation of defense property security regulations
(1) Misdemeanor
Whoever willfully violates any defense property security
regulation shall be fined under title 18 or imprisoned not more
than one year, or both.
(2) Defense property security regulation described
For purposes of paragraph (1), a defense property security
regulation is a property security regulation that, pursuant to
lawful authority -
(A) shall be or has been promulgated or approved by the
Secretary of Defense (or by a military commander designated by
the Secretary of Defense or by a military officer, or a
civilian officer or employee of the Department of Defense,
holding a senior Department of Defense director position
designated by the Secretary of Defense) for the protection or
security of Department of Defense property; or
(B) shall be or has been promulgated or approved by the
Administrator of the National Aeronautics and Space
Administration for the protection or security of NASA property.
(3) Property security regulation described
For purposes of paragraph (2), a property security regulation,
with respect to any property, is a regulation -
(A) relating to fire hazards, fire protection, lighting,
machinery, guard service, disrepair, disuse, or other
unsatisfactory conditions on such property, or the ingress
thereto or egress or removal of persons therefrom; or
(B) otherwise providing for safeguarding such property
against destruction, loss, or injury by accident or by enemy
action, sabotage, or other subversive actions.
(4) Definitions
In this subsection:
(A) Department of Defense property
The term "Department of Defense property" means covered
property subject to the jurisdiction, administration, or in the
custody of the Department of Defense, any Department or agency
of which that Department consists, or any officer or employee
of that Department or agency.
(B) NASA property
The term "NASA property" means covered property subject to
the jurisdiction, administration, or in the custody of the
National Aeronautics and Space Administration or any officer or
employee thereof.
(C) Covered property
The term "covered property" means aircraft, airports, airport
facilities, vessels, harbors, ports, piers, water-front
facilities, bases, forts, posts, laboratories, stations,
vehicles, equipment, explosives, or other property or places.
(D) Regulation as including order
The term "regulation" includes an order.
(b) Posting
Any regulation or order covered by subsection (a) of this section
shall be posted in conspicuous and appropriate places.

[MLeake]

brickeyee, I don't have a case, and multiple times in this thread I have said I don't recommend anybody becoming a test case.

I've asked for supporting documentation, because the sources people have cited have not really made the case.

You have supplied none, but you have certainly been snarky. I'm impressed.

[MLeake]

It seems that some people are conflating "security" with "law enforcement."

Those are not the same.

From my limited involvement with a couple of security units on the Navy side of the house:

1) Security personnel can and will stop and detain persons for any number of reasons; this may involve the use of deadly force, based on guidance from the base commander and higher. (Security units are departmental level, not independent commands, and report to the base. Security Officers are department heads, or OICs, not Commanding Officers.) This is NOT a law enforcement function.

2) Security personnel, if they suspect a crime has been committed, turn over findings to NCIS for actual criminal investigation. In some cases, the FBI might actually have jurisdiction. In some cases, evidence may be turned over to local authorities. Security departments do not really deal with criminal prosecutions, aside from possibly providing evidence or testimony. I would be surprised if most security personnel could actually cite federal codes defining felonies, as that is not within their normal purview.

3) DOD personnel, subject to UCMJ, can be court-martialed for failure to obey a lawful order, or various other articles.

4) Non DOD-personnel are often dealt with adminstratively, not judicially, typically by revocation of security clearances and loss of base access (and quite likely employment). On overseas bases, this may often result in deportation by the host country.

5) The ability of a base commander to set security policy is not in question. The ability of base security personnel to detain persons they suspect of violating base regulations is not in question. What is in question is how the federal judicial system will address any potential criminal charges, and what laws would come into play.

The document cited by Slamfire would seem to imply the actual charge would effectively be armed trespass.

I would still like to see a legislative definition of what constitutes "other lawful purposes."

It seems some folks are quite happy to say, "That's how it is."

Ironically, many of those are the same people who are ardent proponents, in other threads, of 1st, 2nd, 4th, and 5th Amendment rights. I would think they'd actually want to be able to read the source documents, too.

I'm still baffled as to how hostile some posters have been, because some of us would like to see what authorities actually exist, how they are derived, and how they have been applied.

[BGutzman]

Unless one is a very, very experienced lawyer with bales of money just sitting around the house (and a deep stack of bales at that) I highly, highly recommend not messing with military laws and regulations...

It is almost a guarnteed loss in all cases regardless of circumstances...

You want to change military law then run for president and give a lawful order defining whatever you feel the regulation needs (imperial decree I believe is the current term) after your sworn in..

[MLeake]

BGutzman, the entire point is that the military cannot create law that has any jurisdiction over those not bound by the UCMJ.

It's not about "military law."

And defining laws is EXACTLY what Congress is supposed to do, just as interpreting laws is EXACTLY what the courts are supposed to do.

People are treating Military Regulations as though they are laws. They are not.

[BGutzman]

I understand the U.C.M.J. only applies to military but I know from 21 years of active duty military experience that anyone coming onto federally controlled property under the perview of the military will loose almost any legal action by default.

Im not saying its right but I am telling you what my eyes have seen... The military as an organization is in many places as anti gun as you could ever possibly dream... The Dantes Inferno of gun rights..

Lots of bases and forts have open ranges but outside the conduct of simply shooting at the range most post simply do not want guns of any non military kind on them... As a implimentation of the nanny service the military is to its members guns are the great safety hazard....

I cant cound the number of times Ive been shot at and not had bullets (on active duty and deployed) to defend myself, if I was even allowed to carry a evil weapon.... Better a dead soldier than making making national news. The war has opened things up a bit but dont kid yourself its still a nanny machine.

[thallub]

People are treating Military Regulations as though they are laws. They are not.

In the case of concealed weapons on military property those regulations are backed by federal law.

[brickeyee]

Sorry if you think being "snarky" is telling you how the law IS being enforced.

You have failed to do your own homework on case law, and I am not about to waste my time doing ot for you.

You do not get to define 'lawful purposes" and if the person in control of the facility has not defined then, there are NONE.

[MLeake]

thallub, the problem is the federal laws being cited are either vague, or conflict with each other as to intent.

The case law cited, so far, has been about assimilation of a state law.

I'm not asking how things are being done, I'm asking for the legal rationale as to how they are being done.

For the last time, I'm not suggesting that people should deliberately defy the posted signs, nor deliberately become test cases. I am asking for accountability, from the government, as to what regulations they are actually using, and how the application of those regulations jibes with the way the federal codes are actually written.

I do think the VA parking lots are likely to result in a test case before terribly long.

[mehavey]

http://cfr.vlex.com/vid/1-218-securi...ities-19775619

38 CFR 1.218 - Security and law enforcement at VA facilities.
Code of Federal Regulations - Title 38: Pensions, Bonuses, and Veterans' Relief

(13) Weapons and explosives. No person while on property shall carry firearms, other
dangerous or deadly weapons, or explosives, either openly or concealed, except for
official purposes.

At first I thought we were talking about weapons locked away in trunks, but the
prohibition is clearly against carrying.

Seems pretty clear.
Certainly no less clear than 18 U.S.C. 93 & 797, both of which are Law, and are
the statutory authority for the implementing Regs that follow.

[ltc444]

In response to post 68.

When I first entered this discussion I noted that most of the commenters do not understand how a Law is instituted. In the case of the Military, more so than civilian institutions the Devil is in the details.

Those details are contained in the following:

1. The Code of Federal Regulations. (pay particular attention to the Footnotes and exemptions which are buried in very fine print.)
2. Executive Orders. These orders may be published or unpublished. I once imported materials banned by the Toxic Substance Control Act using an unpublished Executive Order.
3. DoD regulations.
4. Major Command regulations.
5. Major Subordinate Command regulations.
6. Base Regulations.
5. Unit SOPs. I once banned members of my unit from renting cars from a major Rental Car Agency because they refused to rent a car to me during a mission. My prohibition was upheld and the agency was removed from the Armys authorized car rental list. Not bad for a 1Lt.
6. A Presidential Finding. This is not published and generally close held. Unit Commanders will be given an order and it will be carried out. If it violates someones "rights" so be it. The Commander nor his/her subordinates will not be held liable for those rights violations.

In short if a Commander decides to ban Civilians carrying Firearms or ban nonaffliliated civilians from entering a Military Reservation he has the authority to do so. The ban will be enforced my Military Personnel, The offender will be held in Military Custody while the investigation is conducted and may or maynot be allowed to contact outside persons or agencies during the course of his stay.

I know of an exairman who entered Whitman AFB with an expired sticker. When he attempted to leave he was detained. He was held 72 hours before he was allowed to contact his wife or his Attorney. He found that he had no recourse in the Courts for his detention.

In short as has been stated in prior post, unless you have a whole lot of money and are prepared to spend a lot of time in a Federal Detention Facility,

DO NOT CHALLENGE A COMMANDERS AUTHORITY ON A Military Reservation or Facility. You will loose.

[Tabor]

I know someone who got caught with his at the gate search and they just about drew a bead on him, they field striped it and turned him around with his gun in pieces.

[mehavey]

Itc444 -- We are in violent agreement, no?

[Willie Sutton]

Well... living on an air force base (I am writing this now from my quarters), and being a shooter... all I can say is at this particular base, we can bring firearms on base and keep them in quarters without any hassle at all, and no registration. I joined the rod and gun club the first day I checked in, and we shoot skeet every Saturday, with 50+ guys shooting and everyone using their own shotguns. Every third Saturday we have high power rifle on the combat weapons range... again no hassle, no nonsense. We carry weapons and ammo separately, cased, and just like you would carry to the range anywhere in the civilian world.

The Wing Commander here (1 Star General) is a shooter BTW...


Willie

[brickeyee]

I'm asking for the legal rationale as to how they are being done.

The person in charge of the facility defines what is "official purposes" and "lawful purposes."

If they have NOT defined these categories THERE ARE NOT ANY besides those granted in the statutory and case law.

NONE.

YOU do not get to define them.

There is not much to point to because this is the mechanism used.

Laws presuppose an enforcement mechanism exists.
They do not need to identify it in every law.

Someone is in control of the facility, and just as with private property, that person controls what may and may not be allowed on the facility.
For military installations the 'in charge' person is usually clearly defined by command structure and orders.

For other government property it can sometimes get hard to trace down a single person, but they are there somewhere.

I routine enter bases and other government facilities.
They have varying level of security form open bases with ID checks to facilities with armed private guards and 100% ID check.

And no badge means no entry, please report to the visitors center for a detailed ID check and to see if you are on the visit request (VR) log.
No VR, no entry.

The higher security places do not allow ANY guns, besides those carried by security.
Not for hunting, not for the military, not for anyone.

For those under their control, you will be banned from the facility, possibly fired, have security clearances yanked for any violation.
For anyone else you will have an appointment in Federal District Court to talk with a judge.

As the owner of the property, the feds get to set the rules.

If you bring a firearm onto a federal enclave without specific permission it is NOT going to go well for you.

You WILL KNOW if you have permission.

If you have to search trying to find it, you DO NOT HAVE IT.

It is really that simple.

And yes, a couple of times I have been granted permission for special reasons.
It WAS a big deal.
ALL involved KNEW it was a big deal, and treated it that way.

Once it took a meeting with a 3-star to get permission.

[ltc444]

Mcheavy. No argument. My rcurring point is that
1. The USC is the source of law.
2. The CFR is the controlling regulation.
3. In National Security situations (Military Installations, DOE Facilities and other facilities the source of the rules and the rules themselves become cloudy.

Having spent almost 30 years dealing with Federal and State regulations as it applys to Explosives and the associated HAZMAT, I have learned that INTENT has little to do with the actual implimentation of a law. In some cases the implementing regulations bear little resembliance to law they are supposed enable.

The recent lower court decisions on 5A prove my point.

On a National Security Installation, the mere presence of a violation is proof of intent. The fact that you inadverntly wander in to a "security area" while legally hunting on a Defense Installation does not matter. You are there you are guilty.

If you are lucky you will get a warning. If you are not lucky then you are in for a hard time. If you are really unlucky you will be in a "Hurt Locker"

The catagory of you problem will in large measure be determined by the Installation Commander and the policies he established to protect the specific installation and the actual or precieved threat level.

Note: I said Threat Level not actual threat.

When dealing with the civilan Justice system, as some often discussed in this forum, it is very easy to get in trouble.

When dealing with "National Secruity Facilities", ones chances of screwing up is increased by several orders of magnitude.

As a young EOD Officer, it was my duty to recover several individuals who paid the ultimate price for trespassing in a restricted area. One we removed in baggies.

Unlike normal governmental process, Violations of Military rules and regulations, even by civilians, can be swift and final.

[raimius]

I know of an exairman who entered Whitman AFB with an expired sticker. When he attempted to leave he was detained. He was held 72 hours before he was allowed to contact his wife or his Attorney. He found that he had no recourse in the Courts for his detention.

I don't see how that complies with his Article 31 rights, unless they never questioned him...
...or by exairman, do you mean he was no longer military when he tried to enter?