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Small Restriction on Firearms Doesn't Destroy 2nd Amend Rights

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By Casey C. Sullivan, Esq. on June 10, 2015 4:33 PM

If you want to bring a loaded gun with you to a federal dam or reservoir, expect to be turned away. Except for hunting and target range purposes, the U.S. Army Corps of Engineers, which controls most federal water resource development projects, doesn't allow for loaded firearms on Corps lands. Explosives are banned too. Save those for the National Parks.

For Second Amendment advocates in the Eleventh Circuit, that restriction "completely destroys" their right to bear arms. The Eleventh Circuit, however, disagrees, taking a more nuanced look at the regulation's impact on Second Amendment rights.

Only Unloaded Open Carry on Corps Land

The Army Corps of Engineers controls several million acres of public land and water. Among the land they control are 400 some lake and river projects and almost 8,000 miles of trails. Unlike the National Park Service, the Corps prohibits loaded guns, ammunition and explosives on the land, except in designated hunting and target shooting areas. Unloaded guns are fine. If you want to take your loaded guns and bombs elsewhere on Corps lands, you can request an exception from a District Commander.

The regulation was challenged by a Georgia-based open carry organization, GeorgiaCarry.org. Open carry advocates argue that gun owners should be allowed to bring their firearms everywhere, from Starbucks to the local mall to federal dams. GCO in particular believes that "any infringement" on the right to bear arms is a total violation of the Second Amendment, meaning that traditional Second Amendment analysis should not apply.

All-or-Nothing? Nothing.

The Eleventh was not convinced. Indeed, it did not even look at what level of scrutiny would apply to the decision, since GCO advanced only one argument that "fails on its own terms." GCO claimed the firearm regulation was unconstitutional per se, since it prevented them from defending themselves on Corps land. However, according the the Eleventh, the cases GCO relied on involved much greater restrictions and were not limited to recreational areas.

Noting that the Supreme Court only recently found an individual right to keep and bear arms in D.C. v. Heller, the Eleventh reminded GCO that the Court found that right was "not unlimited." Limits on gun ownership by felons, laws forbidding firearms in sensitive places, and laws imposing conditions on firearm sales were all mentioned favorably in Heller. While Heller threw out D.C.'s handgun ban because it was a total ban, it also emphasized that the ban extended to the home, not just the public sphere. In advancing their all-or-nothing argument, the Eleventh wrote, GCO was left with nothing.

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