Recently, the Office of Legal Counsel (OLC) of the U.S. Department of Justice(DOJ) issued a “Memorandum Opinion for the Attorney General,” titled “Application of 18 U.S.C. § 930(a) to Post Offices,” ruling that “Section 930(d)(3) of title 18, U.S. Code, permits the lawful carrying of constitutionally protected firearms in post offices that are generally open to the public.”
OLC’s formal, written opinion constitutes controlling legal advice and binding law for DOJ and the entire Executive Branch, thus barring enforcement of a U.S. Postal Service (USPS) regulation, in place since 1972, that prohibits those lawfully exercising their Second Amendment rights from entering post offices or USPS parking lots.
In the Anti-Drug Abuse Amendments Act of 1988, Congress criminalized possessing “firearms or other dangerous weapons” in federal facilities with three exceptions; the third of which permitted, “the lawful carrying of firearms or other dangerous weapons in a federal facility incident to hunting or other lawful purposes.”
Historically, the DOJ took a narrow view of “other lawfulֻ purposes,”ֻ allowing “impositionֻ of criminal penalties on otherwise law-abiding individuals who carry weapons into a post office for the purpose of self-defense.”
OLC ordered, responding to a question from the Attorney General, that DOJ should end that policy, declaring “an otherwise law-abiding citizen who carries a constitutionally protected firearm into a post office that is generally open to the public [falls] within…that exception.”
That is so, finds OLC, because, “The right to keep and bear arms pre-dates the Constitution” and was, quoting the Supreme Court, “‘codified’ inֻ theֻ Secondֻ Amendmentֻ [as] aֻ ‘pre-existingֻ right,’ rootedֻ inֻ natureֻ andֻ ‘inheritedֻ fromֻ ourֻ Englishֻ ancestors.’”
Therefore, Congress’ attempt to bar the constitutionally protected carrying of firearms from all federal buildings isֻ “presumptively unconstitutional.”
As to post offices, which are “generally open to the public,” federal lawyers are unlikely to overcome the presumption of unconstitutionality by showing, as the Second Amendment requires, that its prohibition is “consistentֻ withֻ the Nation’sֻ historicalֻ traditionֻ ofֻ firearmֻ regulation.”
Prosecutors cannot meet that burden because, for almost two hundred years, the United States had no “traditionֻ ofֻ firearmֻ regulation”ֻ inֻ postֻ offices.
That was the case, not because there was no history of “violence at post offices and against postal workers.” To the contrary, that was a “general societal problem,” which, like the USPS, predated the Constitution.
The “Founding generation’s solution” was to punish wrongdoers, not prohibit law abiding citizens from exercising their constitutional rights.
Historically, Congress continued that tradition; only the Executive Branch, first in 1964, prohibited firearms in federal buildings.
As to the frequently resorted to subterfuge that Second Amendment rights do not apply in “sensitive places,” writes OLC, in both Heller in 2008 and McDonald in 2010, that discussion was dicta, not the Court’s holdings.
Worse, in McDonald, that dicta drew support from only four justices. Moreover, in Bruen in 2021, again in dicta, the Court described “sensitive places” as, historically, “legislativeֻ assemblies,ֻ pollingֻ places,ֻ andֻ courthouses.” Therefore, none of that dictum was the Court’s final word.
OLC’s opinion comes as welcome but untimely news to Tad Bonidy who lived in the middle of nowhere but within driving distance of Avon, Colorado, on the state’s rural western slope.
In 2010, after the Court’s landmark rulings in Heller and McDonald, Bonidy asked the USPS if he would be prosecuted if he carried his firearm into the Avon Post Office or locked it in his vehicle in the parking lot.
“Yes,” replied USPS’s top lawyer. Bonidy sued in Colorado federal district court.
In 2013, the federal district court held that Heller assured Bonidy’s constitutional right to carry firearms openly outside his home for self-defense, that although the post office itself was a “sensitive place” and the USPS’s regulation was presumptively valid there, the USPS could not constitutionally bar an armed Bonidy from parking on its property.
Unfortunately, two years later, a three-judge panel of the U.S. Court of Appeals for the Tenth Circuit (2-1) reversed the district court’s ruling.
Judge Timothy M. Tymkovich filed a powerful dissent, but it was insufficient to draw support from the third judge on the panel, a new appointee from Wyoming, or to persuade the Supreme Court to grant review of the ruling.
Too bad.
Rural westerners would have enjoyed not having to park across or down the street from their post offices and disarming before walking to and conducting business there.
Thanks to President Trump and recently confirmed Attorney General Todd Blanche, who was born and raised in Denver, their rights have been restored.
*Mr. Pendley, a Marine, Wyoming attorney, and Colorado-based, public-interest lawyer for three decades with victories at the Supreme Court of the United States, served in the Reagan administration, and led the Bureau of Land Management for President Trump.
