This West Is OUR West

MSLF won significant Second Amendment victory over U.S. Army Corps of Engineers


March 8, 2017

As a supporter of Mountain States Legal Foundation (MSLF), you will be thrilled to learn that MSLF won an enormously significant Second Amendment victory over the U.S. Army Corps of Engineers.  You will remember that MSLF represents Elizabeth E. Nesbitt (née Morris) who likes to hike on recreational lands managed by the Corps of Engineers; however, federal regulations bar her from carrying a self-defense weapon with her as guaranteed by the Second Amendment.  In fact, she is subject to criminal prosecution if she exercises her constitutional right “to keep and bear arms.”  As a result, she and MSLF’s other client Alan C. Baker filed their lawsuit in Idaho federal district court in August of 2013.

In January of 2014, the federal district court denied the Corps’ motion to dismiss MSLF’s lawsuit and issued a preliminary injunction barring the Corps from applying its unconstitutional regulations against “law-abiding individuals possessing functional firearms on Corps-administered public lands for the purpose of self-defense” in Idaho.  Specifically, the district court ruled:

  • [The Corps’] regulation is designed to protect both critical infrastructure and the public.  If the regulation ended there, it would satisfy the “reasonable fit” test.  But it extends to ban firearms entirely from being carried for self-defense.  It is simply too broad.  Drafted long before [District of Columbia v. Heller, 554 U.S. 570 (2008)], it violates the Supreme Court’s description of Second Amendment rights in that case.  This regulation needs to be brought up to date.

In October of 2014, the district court issued a memorandum decision in favor of MSLF’s clients:

  • The regulation banning the use of handguns on Corps’ property by law-abiding citizens for self-defense purposes violates the Second Amendment.  While the Corps retains the right to regulate the possession and carrying of handguns on Corps property, this regulation imposes an outright ban, and is therefore unconstitutional under any level of scrutiny, as set forth in Heller and [the controlling precedent of the U.S. Court of Appeals for the Ninth Circuit.]

The Obama administration appealed.

Late last week, I was preparing to send you this link so that on Monday, March 6, you could watch MSLF Vice President and Chief Legal Officer Steven J. Lechner defend MSLF’s victory before the Ninth Circuit.  Then, late on March 2nd, federal lawyers filed an emergency motion to “place [the case] in mediation” so as “to allow for possible resolution of the matter by the parties.”  Stated the federal lawyers, “The Army Corps of Engineers is reconsidering the firearms policy challenged in this case, as well as plaintiffs’ requests for permission to carry firearms on Army Corps property.”  The next day, the three-judge panel granted the motion.  In the days ahead, in response to MSLF’s lawsuit, the Corps of Engineers will bring its regulations in accordance with the ruling of the Supreme Court in Heller as demanded by MSLF and its clients.

How big is this victory?  Consider that the Corps has recreational properties in 43 states and that it controls 33 percent of all U.S. freshwater fishing in the United States.  At this interactive site, you can see Corps facilities across the country.  Here is the way I put it in MSLF’s press release:

  • The Corps of Engineers operates public parks and recreational facilities at water resource development projects under the control of the Department of the Army and thus is the nation’s largest provider of water-based outdoor recreation.  It administers 422 lake and river projects in 43 states, spanning 12 million acres, encompassing 55,000 miles of shoreline and 4,500 miles of trails, and including 90,000 campsites and 3,400 boat launch ramps.  Waters under its control constitute 33 percent of all U.S. freshwater fishing.

Soon all of these recreational lands will be in full compliance with the Constitution’s Second Amendment.  Congratulations Elizabeth Nesbitt and Alan Baker who had the courage to fight for their constitutional rights.

Thank you for your support of their brave fights.  You may renew or increase your support of MSLF here.  

Best, Perry        

William Perry Pendley, Esq.
Mountain States Legal Foundation
2596 S. Lewis Way
Lakewood, CO 80227
303-292-2021; FAX 303-292-1980