UPDATE - Personal Firearms on Military Installations

[JonnyP]

OK folks, here's the latest.

I received a letter from Senator Shelby dated February 3, 2011. The paragraph pertinent to our concerns is as follows:

"I have spoken with DoD and the Congressional Research Service about this matter and been informed that military regulations do not allow privately owned firearms to be carried on military installations. The power of the Secretary of Defense to set such rules and regulations was upheld by the Supreme Court in United States v. Eliason and reaffirmed in Computerware Inc. v. Knotts."

I took a look at these cases. The first, United States vs. Elaison, dates from the 1800's and seems to involve monetary compensation. The second, Computerware Inc. v. Knotts, dates from 1986 and concerns the selling of computers on base. Although I did not spend hours reading every word, I found no information relating in any way to personal firearms.

I would like to ask all of you to back me up on this and do some research to see if I missed the pertinent info (regarding firearms) in these cases.

Not sure how to respond (if at all) at this point. I do not feel as though my questions have been answered, which were:

1. WHY is there a current ban on carrying concealed handguns on base? And again, respectfully, an answer along the lines of "because it's policy" is not an answer.
2. WHO has the authority to allow personnel to carry concealed handguns on base? I've seen many regulations and memoranda, but the answer is not entirely clear.

Looks like the ball is in our court. I'm just not sure which play to call.

Any help?

 

[Brian Pfleuger]

2. WHO has the authority to allow personnel to carry concealed handguns on base? I've seen many regulations and memoranda, but the answer is not entirely clear.

From your own post...

"The power of the Secretary of Defense to set such rules and regulations..."

1. WHY is there a current ban on carrying concealed handguns on base? And again, respectfully, an answer along the lines of "because it's policy" is not an answer.

Well, the "current" answer truthfully is "because it's policy". Someone, at some time, set the policy and no one has ever seen reason to change it. Likely, the person(s) who set such policies have never even reconsidered this particular one. I'm sure it's way, way down their priority list.


Since The Court has long since decided that the SoD has deference on controlling what is allowed on bases, the ONLY hope I see for overturning this particular rule is if the argument is based on the recent Heller and/or McDonald decisions.

However, I seriously doubt a victory... simply because such a thing would endanger the firearms prohibition on ALL government property.

 

[MadHatter1]

Not sure how to respond (if at all) at this point. I do not feel as though my questions have been answered, which were:

1. WHY is there a current ban on carrying concealed handguns on base? And again, respectfully, an answer along the lines of "because it's policy" is not an answer.
2. WHO has the authority to allow personnel to carry concealed handguns on base? I've seen many regulations and memoranda, but the answer is not entirely clear.

1. Because no installation commander has chosen to re-visit this issue, and simpely carries on the policies that have been in place for years. Its much more career enhancing to 'play it safe' with issues that are percived as safety/security mesures. Had the FT Hood commander allowed CC on post prior to the incident there, he would have been held partialy accountable because the shooter would have been legaly carrying. He would have been fired.... er, asked to resign his commision.
2. To the best of my knowledge, the installation commander has the complete authority to set policy so long as it does not contridict DoD or service branch regulation. Various posts have different policies, though none that Im aware of allow CC unless its in the course of official duty. Im not aware of any DoD or DA policy that prohibits CC. The signs at the gates to FT Bragg say no CC and cite a FB regulation

 

[JonnyP]

Let's keep things within context. The response I received from the Senator seems to imply that the two cases cited are intended to provide evidence that the Sec Def has the power to set such rules and regulations. My point is that they don't seem to refer to this issue in the slightest.

Also, I would disagree that "no one has ever seen reason to change it." I believe the opposite to be true. It's just that no one has been willing to try.

Another question which has gone completely unanswered is this:

What is so different about a military installation, as compared to say, a McDonald's restaurant, that has lead to such a policy prohibiting CCW in one (military installation) but not the other (McDonald's)? And again, respectfully, simply citing policy is no answer. Nor is "because you give up certain rights as a military member/DoD civilian, etc." a reasonable answer.

Just WHY is this right required to be given up?

 

[thallub]

1. WHY is there a current ban on carrying concealed handguns on base? And again, respectfully, an answer along the lines of "because it's policy" is not an answer.

i am a retired US Army M/Sgt. You will not like the answer i'm going to give but here it goes.

1. With the exception of certain law enforcement officers, the US Army has never allowed concealed carry on any of its installations. IMO: This is a very good thing. I do not want gang wars fought on base with concealed weapons. Yep, the US Army has a big gang problem.

2. Everyone who joins the US military is well aware that he/she is giving up some of his/her rights when the signature goes on the dotted line. If you don't want to give up some of your rights to serve in the US military then stay out. If you are serving in the US military and do not like giving up some of your rights under the US Constitution then get out when your hitch is up.

WHO has the authority to allow personnel to carry concealed handguns on base? I've seen many regulations and memoranda, but the answer is not entirely clear.

For law enforcement types, the post commander has the authority to allow concealed carry. For everyone else, no one has the authority to allow concealed carry.

I wouldn't have a problem with officers and E7s, E8s and E9 carrying concealed weapons. Some E6s maybe. E5s and below no way.

 

[Brian Pfleuger]

Let's keep things within context. The response I received from the Senator seems to imply that the two cases cited are intended to provide evidence that the Sec Def has the power to set such rules and regulations. My point is that they don't seem to refer to this issue in the slightest.

They don't have to refer to GUNS. The government doesn't see guns as being any different than any other personal item. They can tell you that you can't bring fishing poles on base if they want to, or baseballs, or anything else. As I said, the ONLY reason why banning firearms would be different than banning baseballs would be a consideration under Heller and/or McDonald.

Also, I would disagree that "no one has ever seen reason to change it." I believe the opposite to be true. It's just that no one has been willing to try.

When I say "no one" I mean no one who CAN change it. Sure, lots of people would like to carry on base. No one with power to change the rule has ever seen reason to change it.

What is so different about a military installation, as compared to say, a McDonald's restaurant, that has lead to such a policy prohibiting CCW in one (military installation) but not the other (McDonald's)? And again, respectfully, simply citing policy is no answer. Nor is "because you give up certain rights as a military member/DoD civilian, etc." a reasonable answer.

In many places, McDonalds (and any other private property) CAN ban carry on their premises. It's not at all peculiar to military bases.

 

[JonnyP]

2. Everyone who joins the US military is well aware that he/she is giving up some of his/her rights when the signature goes on the dotted line.

You know, I keep seeing this over and over, but I have yet to see the applicability to 2A rights.

I spent 20+ years in the service myself. I was completely aware that some rights were given up, but those seemed to involve the right to demonstrate at a political rally or some such. I don't recall ever seeing anything regarding my right to protect myself with a firearm, on or off base.

Even if this DOES apply to service members, WHY is this a right to be given up ON base but not OFF base? What, exactly, is the difference?

 

[hoytinak]

I wouldn't have a problem with officers and E7s, E8s and E9 carrying concealed weapons. Some E6s maybe. E5s and below no way.

So what's your age breakdown for civilians that should carry/maybe carry/shouldn't carry? I'm a senior NCO myself and I've seen MANY officers and some senior NCOs that are way more immature and incompetent than some lower enlisted.

 

[MadHatter1]

I wouldn't have a problem with officers and E7s, E8s and E9 carrying concealed weapons. Some E6s maybe. E5s and below no way.

Rank is the easy way to draw lines in the military, but its lazy. The FT Hood shooter was a field grade officer. I have an E7 working for me who's a complete moron; I don't want him around anything that isn't heavily padded. I have an E5 who can PJ a mass tac drop and plan, coordinate, and execute a detail requiring him to supervise 30 people and manage traffic flow for 6000 vehicles. Which one would you like to see carrying a weapon?

Let's keep things within context. The response I received from the Senator seems to imply that the two cases cited are intended to provide evidence that the Sec Def has the power to set such rules and regulations. My point is that they don't seem to refer to this issue in the slightest.

Ultimatly, commanders have almost king-like authority on their installation, but are also held accountable for what happens. SecDef may have the power to make such decision, but it has traditionaly been delegated to the commanders. No commander is going to risk his career by changing a longstanding policy that is percived as enhancing safety and security.

As far as "rights" go, currently there is NO right to CCW based on current court decisions. Regardless of being military or civilian, when one enters a military reservation, one voluntarily agrees to follow all policies and regulations of the installation. Servicemen and DoD civilians consent to some infringment when they accept the job. In the case of uniformed service, you agree to "....obey the orders of the President of the United States and the officers appointed over me, in accordance with regulations and the UCMJ."
An order not to carry on post is a lawful order, period.

 

[JonnyP]

As far as "rights" go, currently there is NO right to CCW based on current court decisions.

This is what I would like to see in writing. I believe the right most certainly DOES exist, but is simply being ignored.

Regardless of being military or civilian, when one enters a military reservation, one voluntarily agrees to follow all policies and regulations of the installation. Servicemen and DoD civilians consent to some infringment when they accept the job. In the case of uniformed service, you agree to "....obey the orders of the President of the United States and the officers appointed over me, in accordance with regulations and the UCMJ."
An order not to carry on post is a lawful order, period.

Even if it is a lawful order, and I believe there is sufficient argument against this, just WHY is such an order given in the first place?

To allow a militarily trained person to CCW OFF base but not ON base defies logic, IMO.

 

[Brian Pfleuger]

To allow a militarily trained person to CCW OFF base but not ON base defies logic, IMO.

Gun control laws, and particularly those which dictate an otherwise legal activity that can happen in one place and not another, are decidedly NOT based on logic. Unfortunately, being illogical does not equate to being illegal and there was NO legal basis for overturning the rules before Heller/McDonald.

 

[JonnyP]

there was NO legal basis for overturning the rules before Heller/McDonald

If we remove the emphasis from the "NO" in the above quote and place it on the word "LEGAL," I think there's an interesting point to be made.

What we need is for one of the family members survived by one of the many victims of the various shootings we've heard about lately, such as the Ft. Hood shooting, to stand up and demand an answer from the government as to why their loved one was prohibited from protecting himself/herself. With the right attorney, this could crumble this entire house of cards.

I know there are some restrictions on who can and cannot file suit against the federal government, and I'm not an attorney so I don't know for sure, but I do believe there are instances where a family member is NOT prohibited from doing so. I wonder if this would be one of them.

I think such a case would be interesting indeed. It would challenge almost all the current preconcieved notions and force answers to many questions.

 

[Reality's Fringe]

You know, I keep seeing this over and over, but I have yet to see the applicability to 2A rights.

I spent 20+ years in the service myself. I was completely aware that some rights were given up, but those seemed to involve the right to demonstrate at a political rally or some such. I don't recall ever seeing anything regarding my right to protect myself with a firearm, on or off base.

Even if this DOES apply to service members, WHY is this a right to be given up ON base but not OFF base? What, exactly, is the difference?

No, you give up some rights. Speech, Search and Seizure, Due Process etc.
You can't talk politics in uniform or bad mouth superiors, you can be searched and ordered to take a urinalysis(and even blood) tests, you're limited to where/when you can go and who it is with, and your Commander can enact any order he deems applies to the good order of the unit/squadron /whathaveyou.

Commander doesn't want you riding a motorcycle? Too bad.
Commander thinks local clubs are too trashy? Better find somewhere else to act a fool. Commander want you to stop smoking? Enjoy those last puffs....

We had a guy who had some mental health issues (depression) and the commander confiscated all of his firearms which were stored in his private residence OFF BASE. Completely legit and run through the JAG. When you're in, you're federal property. That's it.

Still...this is a nice career.

 

[Brian Pfleuger]

What we need is for one of the family members survived by one of the many victims of the various shootings we've heard about lately, such as the Ft. Hood shooting, to stand up and demand an answer from the government as to why their loved one was prohibited from protecting himself/herself. With the right attorney, this could crumble this entire house of cards.

You'd have no more of a case than you would against any of the other institutions where mass shootings occurred in "No Guns" areas.... and you'll note that a large number of such shootings have happened in "No Guns" areas. There has been little, maybe no, legal implications in any of those instances.

 

[thallub]

It's really easy. If you do not want to obey military regulations, stay out of the military.

 

[JonnyP]

Picture a soldier in the sandbox. He's told by his commander, "See that terrorist over there trying to kill you? Take him out."

No problem there.

Now picture that same soldier back home in the USA, on base. Now he's told by his commander, "See that terrorist over there trying to kill you? Go lock yourself in your office, turn out the lights, hide under your desk, keep quiet, and call 911." (This is practically verbatim from many ACTIVE SHOOTER policies across the country, to include those in place on military installations.)

When I see statements like

If you do not want to obey military regulations, stay out of the military.

, I wonder if I'm the only one who sees a problem here...

 

[carguychris]

You'd have no more of a case than you would against any of the other institutions where mass shootings occurred in "No Guns" areas.... and you'll note that a large number of such shootings have happened in "No Guns" areas. There has been little, maybe no, legal implications in any of those instances.

+1. The problem with such a suit is that it's almost entirely based on hypothetical conjecture. How do you prove that the victim, if she had a concealed handgun, would have acted appropriately and been able to defend herself? You can't.

Such lawsuits against large institutions are seldom successful unless the policy in question is so grossly illogical, biased, pointless, and/or ineffective that no conceivable public interest is served by continuing it. OTOH as other posters have pointed out, the commander of a military base has an almost unassailable mandate to maintain order and discipline amongst the troops under his/her command.

 

[ST Dog]

When I see statements like

If you do not want to obey military regulations, stay out of the military.

I wonder if I'm the only one who sees a problem here...

Nope. Particulary since the rule in question has nothing to do with being in the military.

Civilian DoD employees. Contractors working on DoD projects.
NASA employees at Redstone.

Those people are NOT in the military.

When I say "no one" I mean no one who CAN change it. Sure, lots of people would like to carry on base. No one with power to change the rule has ever seen reason to change it.

Perhaps once we find who has the power to change the rule, they can be convinced to change it.

First is finding the answer to who has that power.
Second, is finding the reason the rule exists,
Third, it can be properly shown that the reason is 1) no longer valid, or 2) the possible harm outweighs the possible good.

 

[Aguila Blanca]

To allow a militarily trained person to CCW OFF base but not ON base defies logic, IMO.

Be careful how hard ... and where ... you push that one. There have already been some post commanders who have ordered that "their" soldiers may not keep firearms in their homes -- even if they live off-post, in private housing. If you aren't careful, some mental midget will "solve" the logical disconnect by simply deciding that soldiers can't have guns ... period.

 

[Brian Pfleuger]

Perhaps once we find who has the power to change the rule, they can be convinced to change it.

First is finding the answer to who has that power.
Second, is finding the reason the rule exists,
Third, it can be properly shown that the reason is 1) no longer valid, or 2) the possible harm outweighs the possible good.

First, we know who has the power, the Secretary of Defense and the base commanders have the power. Even the OP said so, and then asked who has the power after stating who has the power.

Second, it exists because they believe it is the safest option. I disagree with their assessment, as does most everyone on this board, but that is why the rule exists.

Third, impossible. No one can show conclusively that soldiers and civilians would be safer if they could carry. No matter what we believe, it's far from a universally held view on public streets, say nothing of military installations. Simply, impossible to prove.