Volokh Conspiracy: Bonidy v. United States: The Second Amendment at the post office

Yesterday the Supreme Court heard oral arguments in Bonidy v. United States, which is an as-applied challenge to the U.S. Postal Service regulation which completely prohibits firearms on all postal property, including parking lots. Mr. Bonidy lives in Avon, Colorado, and has a concealed carry permit issued pursuant to Colorado law, following a fingerprint-based background check, safety training, and the County Sheriffs determination that he does not pose any threat to himself or others.

The post office does not provide home delivery in Avon, so residents must go to the post office to pick up their mail from a box. The local post office is open 24 hours a day, has counter staff 6 hours a day, and provides no security for patrons.

In the District Court, Judge Richard Matsch upheld the postal ban for the post office lobby (where patrons access their mail boxes), ruling it to be among Hellers sensitive places. He ruled the gun ban unconstitutional as applied to Mr. Bonidy and the parking lot at the Avon Post Office. The case thus came to the 10th Circuit on cross-appeals by the parties. Mr. Bonidy is represented by the Mountain States Legal Foundation. Some of the documents in the case (but not the appellate briefs) are available on the website of Michel and Associates, a southern California firm with a specialty in firearms cases. Like me, Michel and Associates has no role in the case.

Heres my take on some of the issues that the three-judge panel raised at oral argument:

Heller says that nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. A footnote adds: We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.

First question: What should lower courts do with presumptively lawful? Does this mean that any law in the three listed categories (felons/mentally ill, sensitive places, conditions on commercial sale of firearms) must automatically be upheld? After all, as Judge David Ebel pointed out at oral argument, Heller must be construed so as not to cast doubt on the listed laws. Doesnt this mean that all such laws are undoubtedly constitutional?

Lets try applying that interpretation, to see if it makes sense. Say that a regulation requires that when the owner of a retail gun store goes home for the night, the store must have security devices to prevent/deter theft, including that guns must be locked up. This is an easy fit with the Heller dicta, and can speedily be held as lawful.

But suppose that the anti-theft rule is that every gun in the store must be disassembled before the store closes at night. Or that the gun store may only be open for business five hours per week. Or that only persons with a college degree may work in a gun store. All of these would be conditions and qualifications on the commercial sale of arms. These laws are manifestly oppressive, extreme, and unreasonable. They should be subject to heightened scrutiny, and with heightened scrutiny applied, should be ruled unconstitutional.

So one way to answer the question about presumptively lawful would be to say that the presumption can be overcome. The more unreasonable, oppressive, or excessive the regulation, the better the argument that the presumption has been overcome. In this argument, it also matters whether the regulation is longstanding. The Postal Service gun ban only dates back to the early 1970s, just a few years before the District of Columbia enacted its 1975 handgun ban and ban on use of firearms for self-defense in the home. The D.C. ordinances were obviously not longstanding by Hellers standards, and s neither is the postal ban.

Now that we know that the presumption of lawfulness can sometimes be rebutted, the next question is what is the scope of sensitive places such as schools or government buildings? We have to take into account that in the single sentence about permissible gun controls, the Supreme Court was providing general guidance, and was not attempting to provide a detailed rule to cover all situations.

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Volokh Conspiracy: Bonidy v. United States: The Second Amendment at the post office