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CJ
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| Joined: | Sat Oct 20th, 2007 |
| Location: | VT, AK |
| Posts: | 60 |
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Posted: Fri Oct 30th, 2009 03:44 pm |
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Mike wrote: Count wrote: Mike,
The U.S.C supersedes the postal regulation.
No. Regulations go beyond statutory code all the time - regulations are only invalid if a court says so, and to get such a holding, one must show that the agency's promulgation of the regulation was beyond their specific grant of power to the agency by Congress.
No, regulations get their authority from the laws passed by Congress. They can't be more strict than the laws they are based on. 39 CFR recognizes this and says: "(p) Penalties and other law.
(2) Whoever shall be found guilty of violating the rules and regulations in this section while on property under the charge and control of the Postal Service is subject to fine of not more than $50 or imprisonment of not more than 30 days, or both. Nothing contained in these rules and regulations shall be construed to abrogate any other Federal laws or regulations of any State and local laws and regulations applicable to any area in which the property is situated."
And of course, under 18 USC, there is an exception to the rule for "lawful purposes" including hunting....
I wonder if the defense ever raised this issue, I haven't read the text of the 5th Circuit's decision yet.
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Mike
Super Moderator
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Posted: Fri Oct 30th, 2009 04:11 pm |
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CJ wrote: regulations get their authority from the laws passed by Congress. They can't be more strict than the laws they are based on. 39 CFR recognizes this and says: "(p) Penalties and other law.
(2) Whoever shall be found guilty of violating the rules and regulations in this section while on property under the charge and control of the Postal Service is subject to fine of not more than $50 or imprisonment of not more than 30 days, or both. Nothing contained in these rules and regulations shall be construed to abrogate any other Federal laws or regulations of any State and local laws and regulations applicable to any area in which the property is situated."
And of course, under 18 USC, there is an exception to the rule for "lawful purposes" including hunting....
I wonder if the defense ever raised this issue, I haven't read the text of the 5th Circuit's decision yet.
The postal reg does not abrogate any other federal law - 18 USC 930's lawful purpose exception is merely a defense to prosecution under THAT statute - other statutes and regulations may and are more stringent than 18 USC 930.
According to your reading of 18 USC 930 you can stroll into the pentagon carrying a gun for a lawful purpose and bootstrap 18 USC 930 as a defense to violating the pentago reservation gun ban - obvioulsy, this does not work. 18 USC 930 sets a floor - not a lmit - to your prosecution.
This is not that hard - think of it in terms of traffic law - suppose there is a general state law that says the rural road speed limit is 45MPH. Then another state or local law says that in school zones on rural roads the speed limit is 35 MPH. Both laws apply - and the most stringent law wins.
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CJ
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| Joined: | Sat Oct 20th, 2007 |
| Location: | VT, AK |
| Posts: | 60 |
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Posted: Fri Oct 30th, 2009 06:50 pm |
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Mike wrote: CJ wrote: regulations get their authority from the laws passed by Congress. They can't be more strict than the laws they are based on. 39 CFR recognizes this and says: "(p) Penalties and other law.
(2) Whoever shall be found guilty of violating the rules and regulations in this section while on property under the charge and control of the Postal Service is subject to fine of not more than $50 or imprisonment of not more than 30 days, or both. Nothing contained in these rules and regulations shall be construed to abrogate any other Federal laws or regulations of any State and local laws and regulations applicable to any area in which the property is situated."
And of course, under 18 USC, there is an exception to the rule for "lawful purposes" including hunting....
I wonder if the defense ever raised this issue, I haven't read the text of the 5th Circuit's decision yet.
The postal reg does not abrogate any other federal law - 18 USC 930's lawful purpose exception is merely a defense to prosecution under THAT statute - other statutes and regulations may and are more stringent than 18 USC 930.
According to your reading of 18 USC 930 you can stroll into the pentagon carrying a gun for a lawful purpose and bootstrap 18 USC 930 as a defense to violating the pentago reservation gun ban - obvioulsy, this does not work. 18 USC 930 sets a floor - not a lmit - to your prosecution.
This is not that hard - think of it in terms of traffic law - suppose there is a general state law that says the rural road speed limit is 45MPH. Then another state or local law says that in school zones on rural roads the speed limit is 35 MPH. Both laws apply - and the most stringent law wins.
39 CFR cites 18USC. If there are other statutes and regulations that apply, I would like to know what they are...
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KBCraig
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| Joined: | Tue Aug 7th, 2007 |
| Location: | Northeast Texas |
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Posted: Fri Oct 30th, 2009 11:20 pm |
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Mike wrote: The postal reg is clear - they do not give a hoot about state gun carry licenses - citizens are banned from possessing a gun on postal property anywhere anytime, period - but the ATF says you can mail long guns there. . .
It's not just ATF, USPS regs also say you can mail long guns.
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mr.magnum
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| Location: | Smalltown, USA |
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Posted: Wed Nov 4th, 2009 05:02 am |
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Count wrote: Concealed Carry in the Post Office
An Analysis by Robert P. Firriolo, Esq.
The normally quiescent Rob Firriolo,TGZ's valued consigliore, is steamed! After a thread about this subject on one of the Internet's larger gun forums was locked down by the Moderator who had posted a demonstrably erroneous conclusory statement, Rob filed this illuminating brief to straighten out a common misperception.It is no secret that lots of wrong information on firearms laws is propagated by the Internet and by word of mouth. In my experience, one of the most prevalent myths is that it is a federal offense to carry a firearm in a United States Post Office even if you have a permit or license to carry. As a general proposition, this is simply not the case. While state law or carry permit restrictions may prohibit carry in a Post Office, I have yet to locate a federal law that actually criminalizes such conduct where state law and permit regulations allow it.
The statute tossed out in support of the proposition that carry in a post office is illegal is 18 U.S.C. § 930. This statute is also cited in posters typically displayed in federal facilities giving notice that carrying firearms in the facility is a crime. The posters do not even mention the exception to the law that applies to those private citizens who lawfully carry handguns.
Here are the relevant sections of the law:
Title 18, United States Code, Sec. 930. - Possession of firearms and dangerous weapons in Federal facilities
- Except as provided in subsection (d), 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.
- Subsection (a) shall not apply to -
- the lawful carrying of firearms or other dangerous weapons in a Federal facility incident to hunting or other lawful purposes.
In order to fall within the exception to the law, two conditions have to be met. First, one has to be engaged in the "lawful carrying of firearms." This means you cannot be a "prohibited person" such as a convicted felon, a fugitive from justice, or fall within any of the other categories that would prohibit one from lawfully purchasing or owning a firearm under federal law.
It also means that it must be legal for you to carry the firearm under any applicable federal, state, and local laws. If, for example, it is illegal under state law to carry a firearm in a post office, the exception in section (d) (3) of 18 U.S.C. § 930 offers you no protection. The same is true about any local regulations or restrictions on the terms of your carry permit. In other words, if state or local law, or the terms of your carry permit, prohibit carry in a post office, then such carry is not "lawful," and the exception to the ban on carrying in federal facilities does not apply to you.
The second condition that has to be met for one to fall within the exception to the ban on carrying a firearm in a federal facility is that one must be carrying in the facility "incident to hunting or other lawful purposes." One cannot be in the facility with intent to commit a crime, or while committing a crime, and fall within the exception.
A simple test of whether one may legally carry in a post office could involve answering four questions:
- Is it illegal for me to carry a handgun on the street outside the post office?
- Is there a state or local law prohibiting carry in a post office?
- Am I violating the terms of my CCW permit by carrying inside a post office?
- Am I going to commit a crime or engage in some unlawful activity once inside the facility?
If one answers "no" to all four questions, it seems that one falls within the exception to the federal ban on carrying in a federal facility. The answer to the first three questions seeks to resolve whether one is engaged in the "lawful carrying" of a firearm. The answer to the final question seeks to resolve whether one is carrying "incident to ... lawful purposes."
It is important to note that the term "Federal facility" does not include a federal court facility. Even with a valid concealed weapon or handgun license, it is a federal offense to bring a firearm into a federal court facility. Under this statute, the only persons who may lawfully carry in a federal court facility are federal, state, or local law enforcement officers on official duty, or a Federal official or a member of the Armed Forces if authorized to possess the firearm.
Anyone with verifiable information about a CCW permit holder who was prosecuted for violation of 18 U.S.C. § 930 (or any other federal law), and who was also not allegedly committing, or attempting to commit, a crime (other than illegal firearm possession), should contact The Gun Zone or the author and provide details.
AddendumThe Code of Federal Regulations contains the following regulation (excerpted in pertinent part; full text from link):
39 C.F.R. 232.1 Conduct on Postal Property:
(l) Weapons and explosives. No person while on postal property may carry firearms, other dangerous or deadly weapons, or explosives, either openly or concealed, or store the same on postal property, except for official purposes. However, looking further down the regulation, we see the following:
(p) Penalties and other law.
(2) Whoever shall be found guilty of violating the rules and regulations in this section while on property under the charge and control of the Postal Service is subject to fine of not more than $50 or imprisonment of not more than 30 days, or both. Nothing contained in these rules and regulations shall be construed to abrogate any other Federal laws or regulations of any State and local laws and regulations applicable to any area in which the property is situated. Regulations in the CFR have to be based on laws in the United States Code, must be consistent with them, and cannot supercede them. Section (p)(2) of the 39 CFR 232.1 recognizes this fact. That is, the CFR cannot abrogate applicable Federal law.
In so far as firearms are concerned, 18 U.S.C. § 930 (a) is essentially the same as 39 CFR 232.1 (l), except that the regulations do not contain the exception for lawful concealed carry contained in 18 U.S.C. § 930 (d) (3). But by its own terms, the regulations do not override the United States Code ("Federal law)", which does allows carrying a firearm in federal facility.
In other words, the CFR cannot trump the U.S.C., and the U.S.C. allows lawful concealed carry in a federal facility.
Disclaimer: The discussion above is not legal advice. It cannot, and does not purport to, apply to any individual's specific situation. If you have questions about whether your specific conduct is legal, consult a qualified, local attorney familiar with laws regulating firearms. You should also obtain specific information from the government agencies responsible for issuing firearm licenses and/or regulating firearm possession in your location. The author and The Gun Zone assume no responsibility for any actions taken in reliance on the information in this discussion.
There is a reason why concealed carry is termed "COCEALED CARRY"! While I understand that there are places utilizing metal "or weapons " detectors, if you prefer to call them as such, it seems to me that the point is that no one knows you are carrying! In places where detectors are used, you MUST use discretion! In places where detectors are not used, nobody knows but YOU!! Use common sense, use discretion, but at all cost- DO NOT compromise your saftey because of a damn sign posted on a door by people who are NOT concerned with YOUR saftey!
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JSlack7851
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| Joined: | Sun May 10th, 2009 |
| Location: | Ohio USA |
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Posted: Wed Nov 4th, 2009 05:30 am |
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Its just too bad laws can't be tested without someone having to hang for being the test case.
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Swampbeast
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Posted: Wed Nov 4th, 2009 05:57 pm |
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Mike wrote: This section does not figure into anything unless you are being charged under this section.
Thanks for being so smart Mike and knowing the law. Otherwise, in my own ignorance, I might have made an unwise decision on the matter based on a false belief of the situation.
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BlackBusJoe
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Posted: Sun Nov 8th, 2009 07:09 am |
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If people are going to quote from the USC or CFR please quote the whole section.
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Mike
Super Moderator
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Posted: Sun Nov 8th, 2009 12:38 pm |
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BlackBusJoe wrote: If people are going to quote from the USC or CFR please quote the whole section.
These sections are quite long; citing to the authority is what is required, and quoting relevant text is all that is really needed; these authorities are easily googled up and linked to directly int he original article.
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Master Doug Huffman
Regular Member
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Posted: Sun Nov 8th, 2009 12:51 pm |
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Mike wrote: BlackBusJoe wrote: If people are going to quote from the USC or CFR please quote the whole section. These sections are quite long; citing to the authority is what is required, and quoting relevant text is all that is really needed; these authorities are easily googled up and linked to directly int he original article. Thank you. I agree.
Unfortunately as the population posting and the time rate of posts has increased, a declining fraction acknowledges 'the rules', including Rule 7). Laws and rules are for the law abiding and rule following.
Various forms and degrees of anarchy are widely espoused here.
Last edited on Sun Nov 8th, 2009 12:55 pm by Master Doug Huffman
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