The ban on openly carried firearms at or near polling places in Michigan announced by Secretary of State Jocelyn Benson was already drawing criticism from police groups across the state who say that Benson’s order doesn’t have the force of law. Now several Second Amendment organizations are asking the courts to reach the same conclusion, filing a lawsuit in state court accusing Benson of issuing her order without “any legal basis or authorization under Michigan law.”
The suit, filed by gun owner Thomas Lambert along with the groups Michigan Open Carry, Michigan Gun Owners and Michigan Coalition for Responsible Gun Owners, alleges that the open carry ban forces some gun owners to either give up their right to bear arms or give up their right to vote.
In response to the suits, Benson spokesman Jake Rollow said the Supreme Court has repeatedly found that the right to vote is foundational to our democratic society and preservative of our other basic rights.”
Benson’s “narrowly tailored directive does not infringe upon the right to bear arms,” Rollow said. “It simply protects voters and election workers by providing much-needed clarity on the existing state and federal laws that prohibit voter intimidation, harassment and coercion.”
I suspect that the argument that Benson’s order amounts to a violation of the Second Amendment is going to be a tough one to win in court, since her directive doesn’t preclude concealed carry licensees from lawfully carrying. It’s not a total ban on bearing arms, in other words. The argument that Benson doesn’t have the authority to issue her edict in the first place, however, appears to be on stronger legal ground.
While both Benson, the former dean of the Wayne State University law school, and [Dana] Nessel, the AG, say the secretary of state has the authority to issue such a directive, neither official has been able to cite a specific portion of state law giving this power to the secretary.
Many law enforcement officials across the state say that Benson simply doesn’t have the authority to issue any orders banning firearms from polling locations, and that means don’t have the authority to enforce her ban.
“The feedback I’ve been getting from our police agencies is that they’re uncomfortable trying to enforce something they clearly don’t have the authority to enforce,” said Robert Stevenson, director of the Michigan Association of Chiefs of Police. “Our hope is that this will get resolved and there’ll be some clear guidance.
“… But as it stands now, there’s nothing in the law that gives police the authority to enforce the Secretary of State’s edict.”
Michigan Sheirff’s Association CEO Matt Saxton said Benson’s directive appeared to be a “solution in search of a problem.” The association was directing its members to consult with corporate counsel and their local prosecutor on enforcement decisions.
Michigan Gov. Gretchen Whitmer has already been told by the state Supreme Court that her stay-at-home orders were unconstitutional, and there’s a good chance that before Election Day at least one judge is going to say the same thing about the Secretary of State’s open carry ban at or near polling locations.
After posting the original story, I was reminded by the folks at Fenix Ammunition about a quirk of Michigan’s carry laws; concealed carry is banned in places like churches and schools, but open carry is allowed for those who possess a concealed pistol license. Since some polling places may be located in schools or churches, Benson’s open carry ban actually serves as a complete prohibition on the right to carry for some gun owners who have to cast their vote in locations where concealed carry is off limits.
That certainly increases the chances of a successful ruling on Second Amendment grounds, though a judge might not have to reach that conclusion if they find that the Secretary of State didn’t the authority to issue the ban in the first place.