Firearms on military property

[Jeff22]

Many people have the misconception that the UCMJ is the ONLY enforcement mechanism available to deal with violations on military property, and this is incorrect.

On a military base, if you are a military member you are subject to the Uniform Code of Military Justice (UCMJ). If you were charged with a violation of the UCMJ you'd be dealt with by your chain of command.

If you are a dependent, civilian employee, or visitor you are subject to federal law OR state law adopted by that installation under the assimilative crimes act. Under most circumstances (traffic violation, disorderly conduct, etc.) you'd be issued a DD Form 1805 citation and you would then appear in Federal Magistrate's court.

The Assimilative Crimes Act, 18 U.S.C. § 13, makes state law applicable to conduct occurring on lands reserved or acquired by the Federal government as provided in 18 U.S.C. § 7(3), when the act or omission is not made punishable by an enactment of Congress.

Prosecutions instituted under this statute are not to enforce the laws of the state, but to enforce Federal law, the details of which, instead of being recited, are adopted by reference. In addition to minor violations, the statute has been invoked to cover a number of serious criminal offenses defined by state law such as burglary and embezzlement. However, the Assimilative Crimes Act cannot be used to override other Federal policies as expressed by acts of Congress or by valid administrative orders.

Installation commanders can create and enforce their own rules.

The Assimilative Crimes Act allows the Federal Government to adopt certain state laws by reference.

(For example: I don't know how it works in other states, but I work part time for a couple of little towns and in their municipal code they have just adopted by reference the state traffic and criminal code for civil violations. Such violations are then dealt with in municipal court. The wording on the citation might be "Ord 3.01 adopting ss. 947.01 Disorderly Conduct" (Civil violations or civil forfeitures are violations for which the penalty is a fine. If part of the potential penalty could be time in jail, that would be a misdemeanor handled in county circuit court, and if part of the potential penalty is time in prison, that's a felony, also handled by the circuit court. Different states have different terminology and procedures)

A violation of a base regulation involving a non-military person would be dealt with in Federal Magistrate's Court, and could result in a fine and being barred from the base.

A current active MP or SP or DoD police officer could probably explain it better as far as how the procedure works. (I was an SP and an MP in the National Guard and I'm a "civilian" cop now, but I've been retired from the military since 2000 so my ability to explain some of this stuff is rusty)

[Jeff22]

For example, I just found this on the net. It's a link to the regulations about firearms on military property for Fort Hood in Texas:

Fort Hood regulation 190-11

http://www.hood.army.mil/dhr/pubs/fhr190-11.pdf

A military installation can create rules for the installation that are not otherwise noted in federal law, the same way a county or municipality can adopt county ordinances or municipal ordinances that are not otherwise part of state law.

[Jeff22]

How violations committed by a non-military member on a military installation also depends upon the jurisdiction of that particular installation:

Exclusive jurisdiction is when the federal government assumes sole jurisdiction of a designated area.

■Federal criminal jurisdiction.

■Only federal authorities have the power to act.

■State authorities have no power over any violations committed.

■Federal authorities enforce all violations of federal laws or assimilated state laws.

Concurrent jurisdiction means the state retains the right to simultaneously exercise its authority along with that of the federal government.

■Federal criminal jurisdiction exists.

■Both state and federal governments have the power to enforce the law.

■State authorities enforce state laws.

■Federal authorities enforce federal laws and assimilated state laws.

Proprietary jurisdiction applies to instances in which the federal government has acquired some rights or title of ownership to an area in a state but has not obtained jurisdiction.

■Not under federal criminal jurisdiction.

■Basically the federal government has the same rights as a property owner.

■State laws are enforced by state courts.

■Federal laws are enforced by federal courts.

■State laws may not be assimilated.

Assimilated Crimes Act. Acts or omissions occurring in an area under federal jurisdiction, those that would constitute crimes if the area were under exclusive or concurrent jurisdiction, will constitute similar crimes, similarly punishable, under federal law.

■Federal criminal jurisdiction must exist.

■There is no violation of federal law.

■Only state law may be assimilated.

I just talked to one of the cops I work with who was a former active duty MP in the army. At both of the posts where he was stationed, the military had concurrent jurisdiction. Where he was they had a memorandum of understanding with the local county circuit court. If citing a non-military person for a violation, the violation was written on the appropriate state citation and the case was referred to county circuit court.

[MTT TL]

I must be missing something here.

Is ANYONE still arguing there is an apt legal challenge to carry on a military base? If so they need to go back and read everything again. It has all been posted.

[MLeake]

I just talked to one of the cops I work with who was a former active duty MP in the army. At both of the posts where he was stationed, the military had concurrent jurisdiction. Where he was they had a memorandum of understanding with the local county circuit court. If citing a non-military person for a violation, the violation was written on the appropriate state citation and the case was referred to county circuit court.

And if there is no state citation applicable?

Nobody is arguing that possession on a base is, de facto, ok.

At least one of us is asking for specific language that supports current policy, from the appropriate federal regs.

The majority seem happy with vaguely worded codes and statutes. Given the attitude toward such laws in any venue other than military bases, this attitude really puzzles me, said the military retiree.

[MTT TL]

When I was at Leavenworth the commander posted signs at most public buildings that retirees would use as it was becoming an issue, especially after the Ft. Hood shooting. Strange that retirees would think that concealed carry should suddenly be ok on post since it has not been for more than 25 years.

[ltc444]

Mleake Post #80 asking for specific language.

What you are asking for is a Graduate level Law and Goverement course.

Just to learn to use DoD 5220.22-M National Industrial Security Progam requires the equiveleant of a 2 semester hour Graduate Course. It takes another 20 years to learn to impliment and manage a successful program.

If you truly want an answer, you need to find a JAG Officer (Military Lawyer) who worked in that portion of Military Law. A Senior Military Police Officer or Security Officer 05 or above might be able to answer your question.

Retired or former Junior Officers or enlisted personnel do not have the skill sets to answer your questions. There may be exceptions. Not many junior personnel have served in the Senior Policy (DoD, Department of the Army, Navy or Air Force or a Major Command) postings were this question is dealt with.

As a former Commander and General Staff Officer, I had to rely on individuals who spent their entire careers attempting to answer your question. The Orders I issued and those of every other Commander are based on the Legal Opinions and Regulations those subject matter experts promolgated.

In short there is no simple answer.

[brickeyee]

At least one of us is asking for specific language that supports current policy, from the appropriate federal regs.

Whooever is in control of the federal property is allowed to set regulatins consistent with federal law.

If that person has not listed any allowed purposes ther are none.

End of story.

Do you want us to find you a federal reg that says YOU can deny entry to your property to Joe Blow who wants to carry?

[MLeake]

brickeyee, you are still conflatining issues.

My property is my private property.

A military base is public property. Protections are very different.

The ability of a commander to set base regulations is not in question. What is in question is what statutes actually apply to any aftermath.

As far as categories of federal property go, sensitive areas, etc... There is a qualitative difference between, say, a DIA communications site on the one hand, and the golf course or Naval Aviation Museum at NAS Pensacola on the other.

You need high level clearances to get onto one; for the other (the museum, at least), you just show your DL and registration to the security guys and get a guest pass. Thousands of civilians drive around NAS Pensacola every year. Thousands of retirees park their RVs in the rental RV park every year.

IE, some bases have a lot of property that is much more like a national park, than a high security, sensitive base.

And some states have no laws barring weapons from being kept in parking lots, in cars, regardless of signage or business owner's wishes. (IE, no assimilation or statutes to be applied, off-base). In Missouri, I can even have a firearm in the parking lot of a school or police station, so long as it's kept in the car, and not "brandished."

So, perhaps I'm asking graduate level questions. So be it, I am. The CO can't pass legislation, per se. If the feds don't specifically have laws that give the CO's rules the force of law (going back to the discussion on types of jurisdiction), then once the person is back off the base, exactly what charges could be applied?

I still suspect the example given earlier, with the magistrate who handled everything via fines, was because the magistrate probably would have had problems trying to do anything more.

And no, I'm not suggesting anybody become a test case.

I am suggesting that we need to hold government much more accountable for how it acts. I'm even suggesting that making government facilities "gun safe zones" is BS. I don't value government employees more than I value the general public.

[brickeyee]

A military base is public property.

Reserved for the exclusive use of the military.

There are numerous military bases that are closed to public access.

They do not actually have to even listen to your protestations about entrance.

And if you try to force entry you may find out the 'Use of deadly force authorized' is not just a sign.

Since you have no right to enter, you enter under their rules.

[raimius]

Since you have no right to enter, you enter under their rules.

The issue is not that rules exist, but where the authority for the rules comes from (and how far it extends).

[MLeake]

Thank you, raimius. That is the issue.

brickeyee, please quit with your straw man arguments. Nobody has suggested breaking onto a base; nobody has said, "Go ahead and carry."

You keep belittling arguments that have not been made.

[MTT TL]

Do you want to know what gives the authority to arrest people (non-military) for violating a base commanders ban on weapons or the ability of the federal prosecutor to prosecute?

I mean heck it is written right into posse comitatus. There is an exception for "carrying out of government operations" and the "protection of property and functions" "by force if necessary".

If the commander deems it a threat to his operations or installation to bring a gun on post then there is sufficiency right there. Hardly a violation of rights to civilians as no one is compelled to go to a military base.

The law that makes his orders binding is the Internal Security Act of 1950. The Internal Security Act of 1950 makes it a criminal misdemeanor to
violate any “regulation or order” issued by any “military commander designated by the Secretary of Defense” for the “protection or security of
property and places subject to his jurisdiction. This was confirmed in Greer v. Spock.

http://en.wikipedia.org/wiki/McCarra...l_Security_Act

[MLeake]

MTT TL, from your own cite:

The US military continues to use 50 USC 797, citing it in US Army regulation AR 190-11, to support that installation commanders have authority to suspend the 2nd Amendment. The ACT itself does not state this authority, but it is interpreted in the same manner as the suspended portion codified as 50 USC 798.

An Army message known as an ALARACT (ALARACT 333/2011 DTG R 311939Z AUG 11) states "SENIOR COMMANDERS HAVE SPECIFIC AUTHORITY TO REGULATE PRIVATELY OWNED WEAPONS, EXPLOSIVES, AND AMMUNITION ON ARMY INSTALLATIONS." The ALARACT refers to AR 190-11 and public law (SECTION 1062, NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2011(PUBLIC LAW 111-383)). This reference is a truncated version of the public law.

The actual wording of the public law restricts commanders to only exercise this authority over military and paid DoD employees while on duty on a military installation.

I put the last bit in boldface, but it's from your source. If you read through your source, it's also interesting to see President Truman's take on the legislation at the time (with which I agree, actually), and the author's point that it was passed during the McCarthy era, over Truman's veto.

Maybe now you see why I ask these kinds of questions.

[Uncle Buck]

OK, I get stopped and arrested for carrying a gun on base. (No other "crime" committed.)

I go to court and the judge decides to fine me under one of the mentioned US Codes. I tell him that not only am I not going to pay the fine, but also invite him to put the gavel somewhere the sun just does not shine.

This particular judge has no sense of humor and decides my punishment is now more than a fine. What guidelines does he use and what is the maximum sentence he can give me? Where are the guidelines spelled out? What are the guidelines? What is my maximum sentence?

We have been given information of where an installation commander gets his/her authority, but what are the penalties for disobeying that authority?

[mehavey]

8 U.S.C. § 930 : US Code - Section 930: Possession of firearms and dangerous weapons in Federal facilities

(a) Except as provided in subsection (d)[cops, military duty-carry, etc], 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.

[Don H]

mehavey, 18 USC 930 only applies to buildings, as noted in the definition incorporated in that section of code:

The term “Federal facility” means a building or part thereof owned or leased by the Federal Government, where Federal employees are regularly present for the purpose of performing their official duties.

We worked this section over starting on post #10.

[brickeyee]

The issue is not that rules exist, but where the authority for the rules comes from (and how far it extends).

You are grasping at straws trying to justify what you want.

It will not go well for you in court.

If you are so convinced there is no authority do as you wish.

Make sure you have a deep pile of money available.

[MLeake]

brickeyee, do you understand what a straw man argument is?

Or the concept of putting words in the mouths of others?

Please look up "straw man argument," and once you understand the concept, please stop using it.

[mehavey]

Don,

Try this one:

http://www.law.cornell.edu/uscode/ht...2----000-.html

TITLE 18 > PART I > CHAPTER 67 > § 1382 Entering military, naval, or Coast Guard property
Whoever, within the jurisdiction of the United States, goes upon any military, naval, or Coast Guard
reservation, post, fort, arsenal, yard, station, or installation, for any purpose prohibited by
law or lawful regulation; or Whoever reenters or is found within any such reservation,
post, fort, arsenal, yard, station, or installation, after having been removed therefrom or
ordered not to reenter by any officer or person in command or charge thereof—
Shall be fined under this title or imprisoned not more than six months, or both.

As to how a military commander could then handle civilian violation of such regulation:

COMMAND AUTHORITY OVER CIVILIANS
− The commander has authority over, and acts as the employer of, civilian employees
-- The commander can give promotions and bonuses, as well as impose sanctions
-- The AFI 36 series defines this relationship
− The commander has less authority over nonemployee civilians on base
-- As “mayor” of the base, the installation commander has authority to maintain order and discipline, and to protect federal resources
-- As a practical matter, this authority may be limited to detaining individuals for civilian law enforcement officials and barring them from the installation
-- The installation commander may bar an individual from the base for misconduct but must follow certain procedural requirements
-- The commander has almost no authority over civilians off baseREFERENCE: U.S. CONST. art. II, § 2
UCMJ arts 89, 90, 92
AFI 51-604, Appointment to and Assumption of Command (4 April 2006)

Note also this authority in effect and implemented:
http://www.hood.army.mil/dhr/pubs/fhr190-11.pdf

Read especially page 2

[MTT TL]

Maybe now you see why I ask these kinds of questions.

No wonder, with Wikipedia in the world. My bad, I posted it out of haste without reading the whole thing clearly first. As usual Wikipedia is wrong. The code cited was indeed correct however. Neither 797 nor 798 say a word about the rule not applying to civilians, merely that First Amendment Rights may not be violated as a basis for the detainment.

Otherwise the commander might make a rule calling for the arrest of anyone denigrating the president for example.

Here is the code:

(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.

http://codes.lp.findlaw.com/uscode/50/23/I/797

Pretty clear and not a word about civilians, "Whoever" I think is pretty clear.

Also you did not look up the cited court case. Had you, you would have seen that the court limited the ruling to mere exercise of free speech. Regulations for the purpose of security solely have never been challenged successfully that I know of. In fact:

Held:

1. The regulations are not constitutionally invalid on their face. Since under the Constitution it is the basic function of a military installation like Fort Dix to train soldiers, not to provide a public forum, and since, as a necessary concomitant to this basic function, a commanding officer has the historically unquestioned power to exclude civilians from the area of his command, any notion that federal military installations, like municipal streets and parks, have traditionally served as a place for free public assembly and communication of thoughts by private citizens is false, and therefore respondents had no generalized constitutional right to make political speeches or distribute leaflets at Fort Dix. Flower v. United States, 407 U.S. 197, distinguished. Pp. 834-838.

http://www.law.cornell.edu/supct/htm...4_0828_ZS.html

I swore off wikipedia a few years ago, they really are a three ring circus show masquerading as a reliable source. Again, my bad.

[MLeake]

Thanks, MTT TL, that is useful and pertinent.

Interestingly, it seems to require that the regulations have been approved by SECDEF or an appointed deputy, though, before they actually fall under the code you quoted in that last post.

Unless its verbiage was intended to imply that a base commander is a senior Department of Defense director...

Legalese gets pretty aggravating, at times.

[raimius]

I think MTT TL may have found one of the most relevant laws, there.

Originally Posted by brickeyee

You are grasping at straws trying to justify what you want.

Considering I have neither stated nor attempted to justify what I want as far as firearms regulations on DoD land, that is a bit of a stretch!

Originally Posted by brickeyee

It will not go well for you in court.

Not likely. I don't intend to end up being involved in UCMJ proceedings over this. That's FAR too much risk to save 45 minutes of driving time to get to the range.

Originally Posted by brickeyee

If you are so convinced there is no authority do as you wish.

I never stated there was no authority. I asked where the authority was stated, and how.

Originally Posted by brickeyee

Make sure you have a deep pile of money available.

Good advice. Deep pockets are good resources for many things.
Overall, I'd prefer if you dealt with the arguments presented and questions asked, rather than implying I'm out to stick it to the man and going wind up in prison.

[MTT TL]

Interestingly, it seems to require that the regulations have been approved by SECDEF or an appointed deputy, though, before they actually fall under the code you quoted in that last post.

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)

From the code. Could be just about any commissioned officer. You don't often see post commanders under the rank of O-5, even on very small bases.

[Slamfire]

If a Post Commander does not have the authority to arrest unauthorized people from carrying firearms on post, I guarantee Congress will create the law which gives him that authority.

Just get yourself arrested, appeal it through the courts, and win your case.

Then Congress will change the law, and then next time you get arrested carrying on post, you will stay in jail.

This is testable, not like philosophy, it can be tested.