December 5, 2008 was a pretty good day.
Anyone who regularly reads my columns or articles knows that I am no fan when it comes to most of our federal agencies. In particular, I have serious issues with the U.S. Department of the Interior (DOI) and, especially, the National Park Service (NPS).
On December 5th, however, DOI pulled itself out of the basement of my contempt – at least temporarily.
On that particular day Assistant Secretary of the Interior for Fish and Wildlife and Parks Lyle Laverty announced that DOI had finalized updated regulations regarding the possession of firearms in national parks and national wildlife refuges.
The Final Rule was published in the Federal Register on December 10. The Rule will actually take effect 30 days thereafter; making January 9, 2009 the first day it will be effective.
In a nutshell, what the new rule states is that you may carry a concealed, loaded, and operable firearm in a national park or national wildlife refuge if you are authorized to carry a concealed, loaded, and operable firearm in the state in which that park or refuge is located.
In example, if you have a concealed carry permit in the State of Wyoming then, under this new rule, that permit will be recognized and honored in Yellowstone and Grand Teton National Parks.
Simple enough.
Of course, nothing is ever quite that simple. The ink is not yet dry on this thing and some of the same old whiners are talking about potential lawsuits. In example, this quote came from a Washington Post story about this topic.
Excerpt:
“Once again, political leaders in the Bush administration have ignored the preferences of the American public by succumbing to political pressure, in this case generated by the National Rifle Association,” said Bill Wade, president of the Coalition of National Park Service Retirees.
“This regulation will put visitors, employees and precious resources of the National Park System at risk. We will do everything possible to overturn it and return to a commonsense approach to guns in national parks that has been working for decades,” Wade said.
The comments made by Mr. Wade, and others with similar objections, are misleading at best.
In fact, the DOI provided an initial 60-day comment period followed by an additional 30-day comment period in which to hear concerns and objections like those above. These concerns were addressed within the Supplementary Information section of the Final Rule.
It is important to understand the scope of consideration given to this rule in order to understand how truly appropriate it is. Despite concerns expressed by a vocal few this rule change is defensible, sensible and long overdue.
PREFERENCES OF THE AMERICAN PUBLIC
Mr. Wade commented that this rule change ignores “the preferences of the American public”. The background information provided by DOI disputes his contention.
Forty-eight states currently authorize law-abiding citizens to carry concealed firearms and the vast majority of those states passed concealed carry legislation in the last 20 years. That hardly represents a trend of public mistrust for concealed carry.
Further putting his assertion to rest – along with the claim that the NRA was behind the change – is the fact that 47 U.S. Senators (from both parties) wrote to the Secretary of the Interior asking for this rule change.
Four additional Senators wrote in support of this effort some months later and, during the comment period, another two Senators also wrote in support of the rule change.
It was noted that only two Senators and two members of the U.S. House of Representatives submitted a letter during the comment period opposing the rule change.
Approximately 125,000 comments were received and the issues raised within those comments were addressed in the Final Rule. The primary issues of substance are summarized below.
AUTHORITY & UNIFORM STANDARDS
Issue: The Department should not rely on state law to manage firearms because Congress has given federal government complete authority over federal lands.
The DOI responded in part.
“We recognize that Congress may enact comprehensive and preemptive statutes in a wide range of areas that involve national interests.”
However, they also noted;
“In most traditionally federal areas where uniform national regulation is important, such as aliens, navigation, Indian affairs, labor, and civil rights, the Supreme Court has been quick to find preemption. Federal lands have never been regarded as such an area. Indeed, state law has always played an important role, applying to much private activity on federal lands. We believe that this principle applies here.”
Issue: The proposed rule will not provide a uniform standard because state laws governing concealed firearms vary. Additionally, since many parks are located in two or more states with different licensing schemes, there is no way that visitors and park managers will be able to maintain clear standards and enforcement.
The DOI simply looked to current regulations regarding other areas where state law is followed to fashion their response.
“We recognize that the proposed rule means that permissible activities in parks and refuges may vary from state to state. However, this circumstance is not unique and has not presented significant problems in other areas where state laws are adopted. For example, current NPS regulations adopt such an approach for hunting, fishing, motor vehicles and boating. Moreover, in the relatively few instances where parks and refuges are located in more than one state, we do not believe that this presents a situation any different than citizens already face. As is generally the case, and is also true under this rule, individuals remain responsible for familiarizing themselves with and obeying all applicable laws, including the laws of the state they are located within. We see no reason why citizens who are authorized to carry a concealed firearm are not capable of undertaking this same due diligence…”
PUBLIC SAFETY
Issue: There is no reason to allow visitors to carry a concealed firearm for personal safety since visitors to a national park area or wildlife refuge are statistically unlikely to be a victim of violent crime or criminal assault.
Let’s be honest, even the Garden of Eden had its snake and our national parks are no Eden. DOI did not candy coat the truth in its response to this concern.
“However, we also recognize that current statistics show an alarming increase in criminal activity on certain federal lands managed by the Department of the Interior, especially areas close to the border and in lands that are not readily accessible by law enforcement authorities. In 2007, for instance, the NPS reported 8 murders, 43 forcible rapes, 57 robberies, and 274 instances of aggravated assault. The fact that these crime rates may be lower than the national average does not mean that parks are free from violence, nor do these figures suggest that people should be less cautious or prepared when visiting a national park unit or national wildlife refuge.”
DOI closed out their response to this particular issue with this comment.
“We do not believe it is appropriate to decline to recognize state laws simply because a person enters the boundaries of a national park or wildlife refuge, or because there is a lesser chance that a visitor will be harmed or potentially killed by a criminal in a national park unit or wildlife refuge.”
Issue: Visitors should not carry a concealed firearm for self-defense because NPS and FWS law enforcement officers are more than adequate to protect individuals from harm.
DOI, once again, removed the rose-colored glasses and presented fact.
“We also recognize that the NPS and FWS together employ approximately 3000 full and part-time law enforcement officers who are responsible for patrolling and securing millions of acres of land, a substantial portion of which is remote wilderness. In these circumstances, NPS and FWS law enforcement officers are in no position to guarantee a specific level of public safety on their lands, and cannot prevent all violent offences and crimes against visitors.”
DOI also made two notations of case law that are important to understand when addressing this topic. In the first case that was cited the Court found that there is “no federal Constitutional requirement that police provide protection” and the second found that “the government and its agents are under no general duty to provide public services, such as police protection, to any particular individual citizen”.
Issue: A visitor with a concealed firearm may not be well-trained to use a firearm and thus be given a false sense security against potential attackers.
The urge to discuss training – and the lack thereof – for much of law enforcement has been put aside. Instead, I’ll just note what DOI had to say.
“Many individuals authorized under State law to carry concealed firearms are in possession of permits, the acquisition of which is conditioned on some form of training in the use and storage of firearms. Moreover, there is no data before us that would suggest that these citizens lack the requisite skills and/or training to properly use their firearms for self-defense. In fact, statistics maintained by the Justice Department show that from 1987-92 about 83,000 crime victims per year used a firearm to defend themselves or their property, and a majority of these individuals used their firearms during a violent crime.”
Issue: National Parks and Wildlife Refuges are designed to be havens of peace and safety. In this respect, visitors who do not like guns will not fully enjoy their visit to a National Park or Wildlife Refuge if they know that another visitor in close proximity is carrying a loaded and operable firearm permitted by the state.
This really brought up feelings of concern. Imagine having hot dogs banned from fireside because a vegetarian occupied the campsite next to yours!
DOI was, however, more reasonable.
“The Department seeks to provide opportunities for all those who visit national park areas and national wildlife refuges to enjoy their experience. Insofar as the final rule adopts the State law that also governs outside the national park or refuge area, the Department believes that its applicability to these federal areas will not diminish the experience of most visitors, particularly where, as here, NPS and FWS law enforcement officers already carry firearms which are visible to the public.”
Public safety is most certainly a serious issue but the reality of the situation has been made perfectly clear – the parks are not necessarily the safe havens we are expected to believe and federal law enforcement has no obligation (and little ability) to protect citizens from harm. Personal protection, as addressed in this rule change, is appropriate.
WILDLIFE PROTECTION
Issue: Visitors who carry a concealed firearm permitted under state law are likely to use their handguns to shoot or injure wildlife.
DOI responded, once again, in a straightforward and thoughtful manner.
“The Bureau of Land Management and the U.S. Forest Service and a number of state parks and refuges currently authorize the possession of concealed firearms consistent with the laws of the state in which they are located. The available data does not suggest that visitors to these lands misuse their legally permitted firearms for poaching or illegal shooting, or that there is additional danger posed to the public from lawfully carried concealed firearms.”
Issue: The rule will inhibit the ability of park rangers to halt poaching because brandishing a firearm would no longer be probable cause to search for evidence of wildlife parts.
DOI simply disagreed with this nonsense.
“The final rule continues to maintain existing prohibitions on poaching, unauthorized target shooting, and other illegal uses of firearms, including laws against brandishing a firearm in public. As with any other law or regulation, we expect visitors to obey those requirements.”
So there you have it, all you cowboys with concealed carry permits will simply have to clean up your acts and quit waiving those guns at everybody whenever you’re in a park or refuge…
HOOP JUMPING & OTHER ACROBATICS
Lest anyone think this rule change was “pushed through” by the Bush administration, the NRA, or anyone else looking to buy votes from evil gun nuts let’s look at the obstacles in law that were reviewed as this rule was considered.
The rule was analyzed under the provisions of the National Environmental Policy Act of 1969 to make certain that it would have no significant effect on the environment.
The rule was analyzed to determine that it is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of critical habitat and, therefore, does not require a Section 7 consultation under the Endangered Species Act of 1972.
The rule was subject to review by the Office of Management and Budget (OMB) under Executive Order 12866, Regulatory Planning and Review and was also certified not to have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act.
The rule was also found not to be a major rule under the Small Business Regulatory Enforcement Fairness Act, nor did it impose an unfounded mandate under the Unfunded Mandates Reform Act.
The rule was analyzed to make certain that it does not have significant takings implications under Executive Order 12630, Takings, that it does not require the preparation of a federalism assessment under Executive Order 13132, Federalism, and that it meets applicable standards set forth in Executive Order 12988, Civil Justice Reform.
In accordance with Executive Order 13175 “Consultation and Coordination with Indian Tribe Governments” (65 FR 67249), the President’s memorandum of April 29,1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22961), and 512 DM 2, the Department has invited federally recognized tribal governments to jointly evaluate and address the potential effects, if any, of the proposed regulatory action.
And, believe it or not, this regulation does not contain information collection requirements, and a submission under the Paperwork Reduction Act is not required.
Yeah, this little piece of federal rulemaking was “pushed through“…
We’ve come full circle. December 5, 2008 was a pretty good day, miracles do happen and DOI did the right thing for a change.