I really hate how partisan our politics has become, because along with the vitriol comes a certain vapity; an ignorance not only of the Constitution or state statutes but of human nature itself. Take the decision by Michigan Secretary of State Jocelyn Benson to try to ban openly carried firearms from polling locations. As my colleague Tom Knighton pointed out earlier today, a growing number of sheriffs are speaking out and saying they won’t enforce the ban because they don’t believe that Benson has the authority to lawfully declare a ban.
Several Second Amendment organizations have filed suit to stop the ban from taking effect, pointing out that some polling places in Michigan may ban concealed carry but allow for open carry. Benson’s order does just the opposite; concealed carry is allowed but openly carried firearms are forbidden. That means that for some Michigan voters, their right to bear arms will be completely negated, instead of merely regulated.
I really doubt this would have been a big issue in Michigan, except for Benson deciding to grab a couple of headlines with her constitutionally dubious decision. As Benzie County Sheriff Ted Schendel explained to the Traverse City Record-Eagle, Benson has now ensured that hundreds if not thousands of Second Amendment activists are now likely to carry because they’ve been told they can’t.
Schendel said he received a phone call from someone who said they would open carry in defiance of the ban.
“I wish she would have just left it alone because now it’s going to create problems for all of us,” Schendel said. “People are going to press the issue because they know it’s an illegal order.”
Schendel joins several law enforcement officers across the state who say they won’t enforce the ban issued by Benson last week that also covers clerks’ offices and absent voter counting boards. The ban is meant to prevent disruption, intimidation and fear in voters and election workers, who’ve been told to contact law enforcement if the ban is violated or any person is seen intimidating or impeding a voter outside of the 100-foot limit.
The Michigan Sheriff’s Association released a statement earlier this week asking sheriffs in each county to consult their prosecutors on whether to uphold the ban.
Schendel met Friday with the Benzie prosecutor and county clerk to make sure they are all on the same page. Signs telling voters of the ban using language sent out by the state will be posted at all polling stations, he said. But nobody will enforce the ban.
“Obviously, if there is any kind of problem at a polling place we’re going to address it,” Schendel said.
There is no better way to encourage disrespect for the law than by trying to enforce a bad one. In this case, it’s not just that Benson’s ban is going to backfire and actually encourage some folks to open carry, it’s that Benson still hasn’t been able to point to anything in the state constitution that gives her the authority to implement the open carry ban in the first place. Michigan’s Association of Chiefs of Police has been vocal about the problems inherent in trying to enforce the ban at polling places.
Traverse City Police Chief Jeffrey O’Brien, who is a member of the association, agrees that the directive holds no authority.
“I don’t see where (Benson) can usurp the Constitution of the United States or the Michigan Constitution to make law,” O’Brien said.
Michigan has no law prohibiting open carry, which makes it an open carry state, O’Brien said.
“It’s an absolute right under the Second Amendment,” he said.
Grand Traverse County Prosecutor Noelle Moeggenberg is researching the law and if she finds a loophole saying Benson is within her rights in instituting the ban, O’Brien will uphold it.
It shouldn’t be up to the local prosecutor to figure out if the Secretary of State has the authority to ban openly carried firearms at polling locations. Benson herself should have been able to cite the state statute that gives her the authority to do so in her original declaration, but she’s so far been unable or unwilling to do so. Coming on the heels of the Michigan Supreme Court tossing Gov. Gretchen Whitmer’s lockdown orders as unconstitutional, Benson’s move is seen by many as another heavy-handed and illegal move by government officials to target the rights of law-abiding citizens.
Instead of decreasing tensions, Benson’s amplified them. And instead of cracking down on openly carried firearms, she’s almost certainly guaranteed that we’ll see plenty of them at polling places across the state next Tuesday.
Will that lead to charges of voter intimidation? In egregious cases, almost certainly so. While many police departments find Benson’s open carry ban unenforceable, the laws pertaining to voter intimidation remain in effect. Simply carrying a firearm to vote shouldn’t be seen as an attempt to intimidate, but that same armed individual confronting a voter as they’re heading into the polls could very well run into trouble.
I’d like to think that we won’t have problems of voter intimidation in Michigan or anywhere else, and I honestly do believe any issues will be isolated incidents and not a widespread concern. Our civic bonds are almost certain to fray even further in the aftermath of the election, but I hope for at least a few hours on Election Day itself we can experience the calm in the eye of the storm.