OpenCarry.org

June 30, 2008

Department of the Interior

ATTN: Rulemaking Review Officials re #1024-AD70 (National park gun ban
repeal)

Washington, DC

By DOI Rulemaking Portal at
[http://www.regulations.gov](http://www.regulations.gov/)

**SUBJECT: Proposed rule repealing DOI gun ban should be changed to
follow proven model of 36CFR261.8 which simply assimilates state gun
laws onto federal land\
**

**[Executive Summary]{.underline}:**

OpenCarry.org requests that the proposed rule governing gun carry in
National Parks, Wildlife Refuges, and certain other public lands be
replaced by incorporation of the proven rule on other federal public
lands at 36CFR261.8 to simply assimilate state gun laws. The grounds for
this recommendation is our strenuous objections to the proposed rule's
(1) unconstitutional ban on the open carry of handguns, (2)
unconstitutional and unworkable vagueness of the proposed rule and its
associated criminal sanctions, (3) failure of the proposed rule to
achieve the purported policy objective of obtaining uniformity in gun
carry rules across federal lands generally, and (4) trap it sets for
otherwise law abiding gun owners. In essence, the proposed rule plays a
cruel hoax on Americans expecting to carry handguns as they visit DOI
lands around the United States.

**[Introduction]{.underline}:**

OpenCarry.org is an Internet community with over 8,100 registered
members who support the restoration of gun carry rights on our nation's
federal lands but overwhelmingly object to the proposed rule for
Department of Interior ("DOI") managed federal lands.

For years civil rights groups[^1] and members of Congress[^2] have been\
prodding the DOI to repeal its gun carry ban by simply adopting the long
proven Department of Agriculture rule, 36CFR261.8, which simply
assimilates state gun laws onto National Forests.[^3]\
\
In response, the DOI has issued a Notice of Rulemaking[^4] purporting to
repeal the national park gun carry ban, but upon inspection, the rule's
complex and vague scheme would provide few gun rights and serve as a
source of controversy for years to come. Making matters worse, the
proposal sets a trap for law abiding gun owners as they travel through
and visit federal lands.\
\
The proposed rule augments the current National Park gun ban at 36CFR2.4
with the following:

> A person may possess, carry, and transport concealed, loaded, and
> operable firearms within a national park area in the same manner, and
> to\
> the same extent, that a person may lawfully possess, carry, and
> transport concealed, loaded and operable firearms in any state park,
> or any similar unit of state land, in the state in which the federal
> park,\
> or that portion thereof, is located, provided that such possession,
> carrying and transporting otherwise complies with applicable federal
> and state law.

**[Unconstitutional ban on the open carry of handguns]{.underline}:**

The United States Supreme Court has held that the Second Amendment
secures the right to keep and bear[^5] arms, including handguns,[^6] in
federal enclaves.[^7] But the Court also acknowledged previously stated
holding in many cases that there is no constitutional right to carry
"concealed" handguns.[^8] By implication, the right to carry handguns
openly is constitutionally protected, and even a licensure scheme for
open carry is constitutionally suspect.[^9]

The proposed DOI rule works to thwart the right to bear arms, i.e.,
openly, on federal enclaves by limiting the carry of arms to "concealed"
arms. By obvious operation, this eliminates any right to carry long
guns. Further, as applied to the totality of state concealed carry
regulation, it limits the right to carry handguns, Americans'
"quintessential self-defense weapon,"[^10] to only those persons who are
on DOI land in Vermont or Alaska where no permit to conceal is required,
or, to those who both hold a concealed handgun permit ("CHP"), and, the
permit is accepted by the state within which each DOI land enclave
exists.

Finally, **the proposed rule sets a trap for otherwise law abiding gun
owners by requiring 100% concealment at all times** when this is almost
never required under state law. Every gun owner must from time to time
unconceal while changing clothes, working around the camp site, hiking
in hot weather, getting into or out of a vehicle, obtaining the firearm
from a secure case after a journey, going to the bathroom, etc. The
concealment requirement in the proposed rule is therefore unworkable and
will only serve to antagonize the gun owning public and frustrate the
intent of the DOI rule change to respect individual gun carry rights
upon federal lands. Further, the concealment requirement is an prime
example of the DOI ignoring its own acknowledged "responsibility to
recognize the competence of the States" in establishing reasonable
firearm regulations.[^11]

**[Proposed rule plays a cruel hoax on American gun
owners]{.underline}**:

In most states, and therefore in most National Forests, no permit is
needed\
to open carry handguns ("the right"), but in all states but Alaska and\
Vermont, a permit is required to conceal handguns ("the
privilege").[^12] As most states do not accept most other states' CHPs,
**this fact renders the proposed rule a cruel hoax on Americans
expecting to carry handguns as they visit DOI lands around the United
States**.

**[Unconstitutional and unworkable vagueness of the proposed rule and
its associated criminal sanctions]{.underline}:**

36CFR2.4 sets forth a criminal offense to carry a gun on DOIA lands. The
proposed rule purports to immunize any person from this statute who may
"lawfully possess, carry, and transport concealed, loaded and operable
firearms in any state park, or any **similar unit of state land**, in
the state in which the federal park, or that portion thereof, is
located." (emphasis added). The term "similar unit of state land" is
unconstitutionally vague because it requires Americans "speculate as to
the meaning of penal statutes . . . . \[when a\]ll are entitled to be
informed as to what the State commands or forbids" The term "similar
unit of state land" does not inform the gun owner

> as to what the State commands or forbids. The applicable rule is
> stated in ***Connally v. General Const. Co.***, 269 U.S. 385, 391, 46
> S.Ct. 126, 127, 70 L.Ed. 322: 'That the terms of a penal statute
> creating a new offense must be sufficiently explicit to inform those
> who are subject to it what conduct on their part will render them
> liable to its penalties is a well-recognized requirement, consonant
> alike with ordinary notions of fair play and the settled rules of law;
> and a statute which either forbids or requires the doing of an act in
> terms so vague that men of common intelligence must necessarily guess
> at its meaning and differ as to its application violates the first
> essential of due process of law.'[^13]

The term "similar unit of state land" is problematic and vague because
in many or most states, it depends -- local parks, state parks, regional
parks, and other state land categories often have conflicting gun carry
regulations in the same state. Further, state law itself is often
unclear. As an example, one must only look to the Commonwealth of
Virginia where both open and concealed carry is permitted in "local" and
"regional" parks, however carry in "state" parks is limited to concealed
carry, except where hunting is allowed. However, some published
regulations ban all gun carry on various public lands in Virginia,[^14]
often without even providing the required exemption for CHP holders
demanded by Virginia statutory law.[^15]

**Accordingly, the proposed vague rule sets a trap for otherwise law
abiding gun owners** who are not lawyers trained in deciphering
conflicting statutes and regulations as a matter of state law in a
federal law assimilative context. And from the perspective of the DOI,
the proposed rule creates an unworkable enforcement challenge as the DOI
must guess as to the meaning of state law and the meaning of "similar
unit of state land." Criminal defendants and Section 1983 Plaintiffs
will challenge each and every enforcement action and interpretation
policy by a rule of lenity defense and by contending that the rule is
unconstitutionally vague, respectively. In the end, the DOI will not
like the rule, nor its effect of pitting itself against law abiding
Americans and putting its offices in the position of being mini-United
States Attorneys responsible for establishing legal opinions over gun
carry in various tracts of DOI lands.

**[Failure of the proposed rule to achieve the purported policy
objective of obtaining uniformity in gun carry rules across federal
lands]{.underline}:**

Both petitioners the Virginia Citizens Defense League and a majority of
the United States Senate seek "consistency in firearms policy across
federal\
public land management agencies . . . \[and\] that Federal regulations
should

be amended to defer to . . . State law."[^16] But under the proposed
rule, because it is substantially different than the proven 36CFR261.8,
a hiker or motorist will commit a crime if she accidentally strays,
while legally open carrying in a National Forest, onto National Park or
other contiguous DOI lands -- **another trap for gun owners**. This is
absurd, and exactly the opposite result as requested by Petitioners and
the United States Senate and purportedly intended by the DOI's rule
change.\
\
**[Conclusion]{.underline}**:

OpenCarry.org requests that the proposed rule governing gun carry in
National Parks, Wildlife Refuges, and certain other public lands be
replaced by incorporation of the proven rule on other federal public
lands at 36CFR261.8 to simply assimilate state gun laws.[^17]

> Sincerely,
>
> ***[/s Mike Stollenwerk]{.underline}***
>
> Mike Stollenwerk\
> Co-founder, OpenCarry.org

[^1]: See the second and still pending petition for rulemaking filed by
    the Virginia Citizens Defense League and signed onto by gun rights
    groups across America representing over a million Americans
    requesting that the Department of Interior assimilate state gun laws
    onto National Parks using the Department of Agriculture's 36CFR261.8
    as a model, available at http://www.vcdl.org/pdf/VCDLPRM_010408.pdf.

[^2]: ***E.g.***, Senate letter to Secretary Kempthorne, Dec. 14, 2007
    (urging adoption of gun carry regulations in national Parks which
    are both "in accordance with the laws of the host state" and with
    "consistency in firearms policy across federal public land
    management agencies"), available at
    http://www.nraila.org/Media/PDFs/kempthorne_ltr.pdf.

[^3]: Notice the beauty and elegance of 36CFR261.8 which simply
    provides:\
    \
        TITLE 36\--PARKS, FORESTS, AND PUBLIC PROPERTY\
        CHAPTER II\--FOREST SERVICE, DEPARTMENT OF AGRICULTURE\
    \
        PART 261_PROHIBITIONS\--Table of Contents\
    \
        Subpart A_General Prohibitions\
    \
        Sec. 261.8 Fish and wildlife.\
    \
        The following are prohibited to the extent Federal or State law
    is\
        violated:\
        (a) Hunting, trapping, fishing, catching, molesting, killing or\
        having in possession any kind of wild animal, bird, or fish, or
    taking\
        the eggs of any such bird.\
        (b) Possessing a firearm or other implement designed to
    discharge a\
        missile capable of destroying animal life.\
        (c) Possessing equipment which could be used for hunting,
    fishing,\
        or trapping.\
        (d) Possessing a dog not on a leash or otherwise confined.\
        (e) Curtail the free movement of any animal or plant life into
    or\
        out of a cave, except as authorized to protect a cave resource.\
    \
        \[42 FR 2957, Jan. 14, 1977, as amended at 46 FR 33520, June
    30,\
        1981; 59\
        FR 31152, June 17, 1994\]

[^4]: http://federalregister.gov/OFRUpload/OFRData/2008-09606_PI.pdf.

[^5]: ***District of Columbia v. Heller***, 554 U.S. \_\_\_, \_\_\_,
    slip op. at 64 (2008) ("At the time of the founding, as now, to
    'bear' meant to, 'carry.' . . . \[ in ***Muscarello*** w\]e think
    that JUSTICE GINSBURG accurately captured the natural meaning of
    "bear arms." Although the phrase implies that the carrying of the
    weapon is for the purpose of 'offensive or defensive action,' it in
    no way connotes participation in a structured military
    organization.") (quoting ***Muscarello v. United States***, 524 U.
    S. 125, 143 (1998) (quoting Black's Law Dictionary 214 (6th ed.
    1998) (Ginsberg, J., dissenting)). 

[^6]: ***Id.*** at 64 ("we hold that the District's ban on handgun
    possession in the home violates the Second Amendment, as does its
    prohibition against rendering any lawful firearm in the home
    operable for the purpose of immediate self-defense").

[^7]: The DOI lands in question are also federal enclaves.

[^8]: ***Id.*** at 54. ***See also*** ***State v. Bolin***, \_\_\_
    S.E.2d \_\_\_, 2008 WL 2078141, 2 (S.C. 2008) (state statute banning
    handgun possession for persons under 21 years of age violates South
    Carolina constitution as applied to persons aged 18-20 years of
    age).

[^9]: ***E.g.***, ***Nunn v. State***, 1 Ga. 243, 246, 250--251 (1846)
    (striking down similarly broad ban on openly carrying weapons on
    Second Amendment grounds); ***State v. Kerner***, 107 S.E. 222
    (1921) (state requirement for license to carry handguns openly in
    public is unconstitutional under North Carolina constitution).
    ***Accord***, **Follett v. Town of McCormick, S.C.**, 321 U.S. 573,
    578 (1944) ("spreading the distributor\'s religious beliefs is an
    exercise of religion within the First Amendment and therefore immune
    from interference by the requirement of a license") (Reed, J.,
    concurring); ***City of Lakewood v. Plain Dealer Pub. Co.***, 486
    U.S. 750, 777 (1988) ("license requirements are struck down . . .
    when they affect the enjoyment of freedoms which the Constitution
    guarantees") (internal quotations omitted).

[^10]: ***District of Columbia v. Heller***, 554 U.S. \_\_\_, \_\_\_,
    slip op. at 57 (2008).

[^11]: http://www.regulations.gov/fdmspublic/ContentViewer?objectId=090000648053d497&disposition=attachment&contentType=pdf
    (citing Executive Order 13132 of August 10,

    1999 (''Federalism'')).

[^12]: ^?^ Except in Wisconsin and Illinois which bans conceal carry
    altogether. Illinois allows open carry on foot in unincorporated
    areas, and Wisconsin allows open carry on foot throughout the state.

[^13]: ***Id*.**

[^14]: ***E.g.***, 4VAC15-40-120 ("It shall be unlawful to have in
    possession at any time a gun which is not unloaded and cased or
    dismantled on that portion of the Hog Island Wildlife Management
    Area bordering on the James River and lying north of the Surry
    Nuclear Power Plant, except while hunting deer or waterfowl in
    conformity with a special permit issued by the department.");
    4VAC15-40-140 ("It shall be unlawful to hunt or have in one\'s
    possession a loaded gun on Buggs Island or to shoot over or have a
    loaded gun upon the water on Gaston Reservoir (Roanoke River) from a
    point beginning at High Rock and extending to the John H. Kerr
    Dam.").

[^15]: ***E.g.***, Va. Code § 18.2-308(B)(6) ("possession of a handgun
    while engaged in lawful hunting shall not be construed as hunting
    with a handgun if the person hunting is carrying a valid concealed
    handgun permit"); Op. Atty. Gen, 2002 WL 31311963 (Va. 2002)
    (opining that state park ban on concealed gun carry is unlawful
    because a "person\'s privilege to carry a concealed handgun is
    considered universal within the Commonwealth subject to limited
    circumstances . . . \[except where t\]he General Assembly has
    specifically set out those places where the carrying of a concealed
    handgun is prohibited").

[^16]: Request by US Senate members at n. 2, supra.

[^17]: ^?^ If the DOI has particularized concerns over alleged
    "poaching" threats posed by persons openly carrying **long guns**,
    then it should directly reflect these concerns into its final rule
    **without disturbing the fundamental right to open carry handguns
    currently permitted as a matter of statutory law in 44 states**.