Michigan AG Says Commission Can Prohibit Guns At State Capitol

WWJ News
May 08, 2020 - 1:31 pm
Michigan Capitol Building


(WWJ) In a stunning twist, Michigan Attorney General Dana Nessel says the Michigan State Capitol Commission can ban guns from the state Capitol building.

Nessel has sent a letter to the Commission confirming that it has the legal authority to prohibit the presence of firearms in the state Capitol, if it chooses to do so. That authority is consistent with the current state of the law regarding firearms in public buildings and an informational letter sent to the House Speaker in 2018. 

This comes amid calls by some in the State Legislature for the Commission to act — and a days after a Commission vice-chair said he'd looked into it, and a legal advisor said they couldn't do it

But Nessel says that is not the case, and that a ban is needed. 

"This situation is a ticking time bomb," Nessel pointing to last week's armed protest in an interview with WWJ Newsradio 950's Jon Hewett.

"And if the Capital Commission or the Legislature fails to act, it's not really a matter of it there will be a serious incident, it's when. And when that incident does occur, the Capitol Commission will have blood on their hands."

The Commission, which manages the Capitol grounds and building, is made up of the Secretary of the Senate, the Clerk of the House of Representatives, two individuals jointly appointed by the Secretary of the Senate and the Clerk of the House, and two individuals appointed by the governor.

“The Capitol is a place for free expression of thought and debate. But the freedom of civil discourse does not imply the right to threaten others with harm or violence,” Nessel said. “In our current environment and as the chief law enforcement officer in this state, I am gravely concerned for the safety of both our legislative members and the public at large. 

“With exceptions to those tasked with protecting our Capitol, the only way to assure that a violent episode does not occur is to act in concert with the many other state legislatures around the nation that have banned firearms in their capital facilities. The employees at our Capitol and members of the public who visit are entitled to all the same protections as one would have at a courthouse and many other public venues. Public safety demands no less, and a lawmaker’s desire to speak freely without fear of violence requires action be taken.” 

As for how likely a ban will happen, WWJ Lansing Bureau Chief Tim Skubick reports it's believed the AG's legal opinion trumps all others.

"This will not sit well with the gun lobby, which for years has been able to carry their weapons, loaded or not, into the Capitol," Skubick noted. "And the House Speaker has defended that action, saying he would not do anything to ban them." 

Nessel wrote in her letter to commissioners that the Commission has the legal authority to ensure the “safety of the visiting public, as well as those who carry out the People’s work by prohibiting firearms within the Capitol building.” 

During recent protests at the Capitol, some people carried firearms into the building, leading lawmakers and other Capitol employees to express that they felt threatened and feared for their safety, the AG said.

((View a copy of the letter))

Following the release of Nessel's letter on Friday, a group of Democratic state lawmakers expressed their support. 

Sens. Dayna Polehanki (D-Livonia), Sylvia Santana (D-Detroit), Erika Geiss (D-Taylor), and Marshall Bullock (D-Detroit) issued the following statement:

“The Capitol is the building of the people, and it should be a place where everyone feels safe and secure, no matter whether they are children coming for an educational opportunity or adults exercising their First Amendment rights. The recent intimidation tactics used by protesters have been deeply disturbing, with their actions simply having gone too far. While we believe in and support Second Amendment rights, we also need to ensure the safety of those working in, and visiting, our Capitol Building.

“Our State Capitol should be treated no differently than other government and federal buildings, which also restrict guns. We are grateful to Attorney General Dana Nessel for weighing in on this matter and remain hopeful that those on the Capitol Commission will do the right thing and make the safety and security of all who enjoy our Capitol Building their top priority by prohibiting guns from entering it.”

Polehanki last Thursday tweeted a photo after demonstrators carrying long guns entered the Senate public gallery, shouting at lawmakers on the chamber floor. The protesters were unhappy with Gov. Gretchen Whitmer's recent executive orders concerning the COVID-19 pandemic, and were urging legislators to vote against an extension of the state of emergency in Michigan. 

"Directly above me, men with rifles yelling at us. Some of my colleagues who own bullet proof vests are wearing them," Polehanki wrote. 

In explaining her reasoning, the Attorney General said that the regulation of firearms generally stems from state statute, but the prohibition of firearms from public spaces does not need to originate from the Legislature.  

The Michigan Supreme Court, for example, adopted an administrative order that bars firearms from any courtroom, office or other space used for official court business or by judicial employees without prior approval. That order applies to open carry of firearms as well, Nessel notes, as it was cited in a Court of Appeals decision in an open carry challenge to a school district prohibition of weapons on school grounds. 

“The concept of ‘open carry’ in Michigan law does not provide the unfettered right to bring firearms into any public space,” Nessel wrote in her letter. 

The Supreme Court also ruled that state law, which preempts regulations by local units of government, does not apply to school districts. Therefore, a non-local unit of government – such as a school district, the Supreme Court or the Michigan State Capitol Commission – may lawfully impose regulations that impact firearms. 

Nessel notes in her letter that residents are currently permitted to enter the Capitol while clad in body armor and armed with high-capacity loaded semi-automatic assault weapons. “This is permitted during active legislative sessions and during moments of controversial debate where emotions and passions are known to run hot,” she wrote. “At the risk of stating the obvious, this is an absurdly dangerous combination that would cause the heart of any security expert to skip a beat.” 

Nessel said her position on restrictions to open carry and weapons possession is consistent with guidance provided to House leaders from the previous administration of the Attorney General’s office. 

While the Commission now has permission, it's not known how soon they might act. 

Speaking to WWJ on Tuesday, Commission vice-chair John ​​​​​​Truscott said, although he's an advocate of the Second Amendment, he was "very disturbed" by what he saw during the protest.

"You know, we've had for years a number of rallies on the Capitol lawn where guns are brought in, people advocating for the Second Amendment, but this took things a step further," he told Clark.

"Before, the groups have been very respectful; very good to deal with. This group — a very small group of individuals that came in the building — really took a threatening stance...and it was a different tone that was taken than has ever been taken before. It really gave people some pause."