David Kopel:

You might think that a government unit called the “U.S. Army Corps of Engineers” would mainly perform projects such as building military forts and similar facilities. Yet the Corps of Engineers has acquired jurisdiction over many things that have nothing to do with the military. In particular, “The Corps of Engineers is the nation’s largest provider of water-based outdoor recreation. It administers 422 lake and river projects in 43 states, spanning 12 million acres, encompassing 55,000 miles of shoreline and 4,500 miles of trails, and including 90,000 campsites and 3,400 boat launch ramps. Waters under its control constitute 33 percent of all U.S. freshwater fishing.” (Here is a list of the Corps’ 1,969 recreational facilities.) Thanks to a lawsuit brought by the Mountain States Legal Foundation, the Corps has announced that it is reconsidering the gun ban on its outdoor property.

The Corps allows hunting on some of its land. Except for hunting, possession of a functional firearm is prohibited on Corps land — even a handgun inside one’s own tent. In Nesbitt v. U.S. Army Corps of Engineers, the Mountain States Legal Foundation (a public-interest law firm based in Denver) filed a lawsuit on behalf of two Idaho residents, regarding Corps recreational land in Idaho. In 2014, Federal District Judge B. Lynn Winmill (appointed in 1995 by President Bill Clinton) ruled that the ban violates the Second Amendment. The Obama administration then appealed the ruling to the U.S. Court of Appeals for the 9th Circuit.

The prohibition was adopted in 1973, during the Richard Nixon administration. Nixon – -the only U.S. president ever to resign in order to avoid certain removal from office by the House and Senate — thought “guns are an abomination.” His administration promulgated a variety of anti-gun regulations.

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Note that by banning ammunition, the regulation also forbids the possession of unloaded firearms that could be loaded in an emergency (if sufficient time were available).

Winmill held that “this complete ban goes beyond merely burdening Second Amendment rights but ‘destroys’ those rights for law-abiding citizens carrying operable firearms for the lawful purpose of self-defense.” Accordingly, the ban was unconstitutional. The opinion recognized the Corps’ authority to regulate guns on its outdoor property, but not to forbid them altogether.

A similar case in Georgia, involving a different attorney and plaintiffs, was remanded by the 11th Circuit. GeorgiaCarry.Org, Inc. v. U.S. Army Corps of Engineers, 788 F.3d 1318 (11th Cir. 2015). The 11th Circuit held that the total ban was not a destruction of Second Amendment rights, since visitors spend only part of any given year on Corps property.

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As the Corps follows through on its reconsideration, it has a very useful model available. In 2009, Congress passed and President Barack Obama signed (as an amendment to bill involving credit card laws) legislation allowing the lawful carrying of firearms on lands in the National Park Service. This was later extended to include the National Wildlife Refuge System. 54 U.S.C. § 104906; 36 C.F.R. § 2.4. In short, a person can carry a firearm on such property if the person can legally own a firearm and if the carrying is compliant with the law of the host state. Some states require a permit to carry a firearm; some require a permit for concealed carry but not for open carry; and others do not require a permit for either mode.

Although some people predicted disaster when the National Parks law was enacted, its operation in the past eight years has been uneventful. It is reasonable to presume the same for a similar regulation for Corps of Engineers recreational property.

A number of comments are in order.  First of all, it’s inappropriate in the superlative for the Army Corps of Engineers to have control of land and waterways like they do.  This is a misuse of tax monies and of the Army as well.  If the Army did engineering well, SL-1 wouldn’t have had a control rod ejection accident and they would be the reactor operators rather than the Navy, or at least in addition to the Navy.  Perhaps they are doing an outstanding job with dam engineering, I wouldn’t know, except for the fact that they’re not.  But they certainly don’t do sporting and recreation well.  Good Lord.  I can think of a million uses for the Army, and control of sports and recreation isn’t one of them.

Second, it’s inappropriate in the superlative for the Army to have restricted guns on property like this.  The horrible Richard Nixon notwithstanding, the Army could have reversed this without a court fight.  Instead, they had to look and act like progressive social justice warriors in court rather than the robust, constitution-loving group they are supposed to be.

Third, I cannot think of a more ridiculous argument than the 11th Circuit’s ruling that prohibition of guns sometimes doesn’t infringe the second amendment because that’s not the same thing as a prohibition all the time.  It’s okay, under this schema, to make it impossible to defend yourself if you’re at location “x” because sometimes you’re at location “y.”  The phrase “shall not be infringed” means nothing anymore and the English language is Swahili while the sky is the earth.  Contradiction and beclownment is our friend.

Fourth, consider a second the Army’s argument, and as you do, it should be insulting to you.  Returning to the article, it says “The Corps pointed out that the Supreme Court’s 2008 decision District of Columbia v. Heller allows gun bans in “sensitive places” such as “schools and government buildings.” Winmill explained that the “sensitive places” principle might justify a gun ban for Corps buildings, but not for “outdoor parks.” As for the Corps’ concerns that many of its recreational visitors are drunks who sometimes assault park officers, the court held that this cannot justify prohibiting everyone from exercising a constitutional right. The district court issued an injunction against gun prohibition on Corps property in Idaho. That injunction is still in effect.”

Drunkards, you are.  Many of you, if you frequent Army Corps of Engineers Land.  Many of you.  Just troublemakers and drunkards, and potential murderers.  And yet the fact that it’s precisely the innocent and peaceable man who may be assaulted by drunkards who needs that protection that is overlooked and unaddressed.

At one time I conducted my own research of homicides in National Parks before and after guns were again legalized in 2010, and the parks were no less safe in 2011 than they were in 2010.  Kopel is right about this, and perhaps soon I’ll submit another FOIA request for updated information.  As always with constitutional and open carry, mothers and children don’t run screaming and blood doesn’t run in the streets.  These are all just hysterical reactions.

This whole episode should be embarrassing to the Army, and it shouldn’t just mediate this case until a satisfactory conclusion is reached.  It should forthwith reverse the regulation and recognize the very constitution it should be defending.  David Kopel is a truly nice guy.  I’ve exchanged email with him before.  He thanked the Army Corps of Engineers.  I’ll reserve my thanks, thank you very much.  This has redounded to a lot of wasted taxpayer money and nanny state collectivism by the Army.  The Army should be ashamed it ever got this far.