The ban on openly carried firearms at or near polling sites in Michigan that was put in place by Secretary of State Jocelyn Benson was stopped by a Michigan judge late Tuesday afternoon when he granted a preliminary injunction blocking enforcement of her new rule.
Michigan Court of Claims Judge Christopher Murray didn’t say whether the open carry ban violated the Second Amendment rights of residents who want to lawfully carry to the polls, because in Murray’s view Benson never had the authority to institute a ban in the first place, making the Second Amendment question moot.
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?”
Murray argued Benson could have implemented such a rule over a months-long process, but Nessel’s office pushed back.
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,” Assistant Attorney General Heather Meingast said. “There is no affirmative right to open carry in all places at all times.”
I’m not even an attorney and I know how awful Meingast’s argument is. There is an affirmative right to open carry in those places that aren’t deemed off-limits, and under Michigan law that includes most polling places. The state of Michigan’s position is that they shouldn’t have to follow the law if it’s too hard, and Judge Murray simply reminded Attorney General Dana Nessel and Benson that the law doesn’t work that way.
In his decision, Murray noted that the Democratic secretary of state’s prohibition on the open carry of firearms at polling places appeared to be more than an interpretation of existing statute. It was a rule that should be subjected to the rule-making process, he wrote.
“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.
While state law doesn’t grant the right to open carry a firearm, the Second Amendment does in some form and state law provides some prohibitions, the judge said.
“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.
Without an injunction, Murray said, a “single state officer” would effectively be able “to circumvent (and essentially amend) a valid and enforceable state law on the same subject.”
“This is certainly not in the public interest, which expects its public officials to follow the rule of law,” he wrote.
Nessel’s office is vowing to appeal Murray’s decision, but given the fact that neither the AG nor the Secretary of State can point to any section of state law that allows Benson to arbitrarily invoke a gun ban, I don’t think they’re going to be successful.
As one local sheriff recently said, Benson’s open carry ban actually created a problem where one didn’t previously exist. Now Benson is going to have to cope with the fact that she’s likely made open carry at the polls a more common occurrence than it would have been otherwise thanks to her unconstitutional attempt at a gun ban.