A Michigan Court of Claims judge has issued a temporary injunction against a directive by the secretary of state that would ban the open carrying of firearms at polling places.
Judge Christopher Murray issued his order after Secretary of State Jocelyn Benson unilaterally decreed that a ban on open carry at polling places was necessary after the “plot” to kidnap Governor Gretchen Whitmer was foiled by the FBI.
The state’s Democrats have leaped upon the alleged plot as proof that the far-right white supremacists are all over Michigan and a danger to public order. Judge Murray was having none of it.
The edict by Benson “smacks of an attempt at legislation” and lacks public input instead of following the regular rule-making process, Murray said during a Tuesday emergency hearing. Further, the state already has a law prohibiting voter intimidation, said Murray, an appointee of Republican former Gov. John Engler.
“The Legislature has said: Here are the places you cannot carry a weapon,” Murray said during the hearing. “The secretary has expanded that. And so how is that in accordance with state law?”
The judge said there is no reason not to go through the regular rulemaking process to amend the state law and make it illegal to carry firearms at polling places. But Democrats are saying, in essence, the law be damned. This is an emergency!
The need for this directive has grown during the last several weeks, specifically after the details of the alleged plot against Gov. Gretchen Whitmer were revealed, Nessel’s representatives argued.
“There’s no inconsistency,” said Assistant Attorney General Heather Meingast. “There is no affirmative right to open carry in all places at all times.”
Actually, there is an “affirmative right” to open carry anywhere the state legislature has determined it’s legal to do so. Where the legislature has said it is not legal to open carry, there is no “affirmative right” involved. So while Meingast is technically correct, there is an “affirmative right” to open carry at polling places because the legislature did not specifically forbid it.
And the secretary of state cannot, willy-nilly, carve out exemptions to open carry without going through the regular rulemaking process.
“The directive itself covers a substantive policy area — where a resident can openly carry a firearm — and applies to every resident of this state,” and implies that law enforcement will be expected to enforce it, Murray wrote.
Murray points out that there is no state law that allows for open carry, but the Second Amendment does that. And the state simply provides exceptions to the rule. If you want more exceptions, you need to amend the rule.
“Even if defendant can place additional restrictions on where people can open carry a firearm beyond those contained in statute, it must be done through compliance with the (Administrative Procedures Act),” wrote Murray, noting the rule-making process would require public notice and public comment.
The Democrats’ main argument — that people carrying guns at polling places is meant to “intimidate” voters — falls flat because, as Murray points out, there are already laws against voter intimidation on the books.
The Michigan Coalition for Responsible Gun Owners was one of the organizations that filed suit against Benson’s order. They argued that it “conflicts with state law, conflates open carry with voter intimidation” and “is conjured without any legal basis or authorization under Michigan law.”
The bottom line is that Democrats want to argue that if you carry a gun in public, you are automatically a threat because, well, guns, right-wingers, terrorists. They think that anyone who carries a gun openly is itching to use it. It would be funny if they weren’t trying to strip away our rights because of their hysterical paranoia.
Judge Murray’s injunction will probably not survive. The state will argue “public safety” and that will be the ballgame. But it’s nice to see a judge at any level who “gets it.”