The U.S. Army Corps of Engineers, which oversees vast areas of recreational lands that are open to the public, unconstitutionally prohibits visitors from exercising their Second Amendment protected right to self-defense in every way imaginable. The Corps of Engineers bans the possession of a functional firearm in a tent, even when camping overnight, and prohibits people from carrying a functional firearm in any manner — openly, concealed, or in a vehicle. Luckily, thanks to Mountain States’ victory on behalf of its clients, Elizabeth Nesbitt and Alan Baker, the Corps of Engineers is currently prohibited from enforcing its unconstitutional ordinance in the State of Idaho.
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The Corps of Engineers is one of the nation’s largest providers of outdoor recreation. It administers more than 400 lake and river projects in 43 states, spanning 12 million acres, encompassing 55,000 miles of shoreline and 7,856 miles of trails, and including more than 90,000 campsites and 3,754 boat launch ramps. It also manages 14 percent of all U.S. freshwater fishing waters.
MSLF’s client, Elizabeth Nesbitt was issued an emergency license by the Nez Perce County Sheriff to carry a concealed handgun in 2012 due to threats and physical attacks against her by a former neighbor. Elizabeth regularly carries a handgun for self-defense. She uses Corps-administered public lands near the Snake River in Lewiston, Idaho, to boat with friends, regularly walks the Corps-administered paths in the area with her dog and/or her family, and must travel across Corps-administered public lands to reach Hells Gate State Park.
MSLF’s other client, Alan Baker is an NRA-Certified Home Firearm Safety, Personal Protection in The Home, Rifle, Pistol, and Shotgun Instructor, and also a Utah Concealed Firearms Instructor. He is licensed to carry a concealed handgun in Idaho, Utah, Oregon, and Arizona and regularly carries a handgun for self-defense. A life-long outdoorsman, Alan regularly recreates on Corps-managed lands in Idaho, including Dworshak Dam and Reservoir on the North Fork Clearwater River.
Because Corps of Engineer regulations ban functional firearms, even while camped in tents, both Elizabeth and Alan are subject to criminal prosecution if they exercise their Second Amendment protected rights. The Corps of Engineers did not respond to requests from MSLF seeking exemptions from its firearm ban for either Elizabeth or Alan.
After MSLF filed a Motion for a Preliminary Injunction and the federal defendants filed a Motion to Dismiss, the District Court in Idaho held a hearing to address both motions on Jan. 7, 2014. On Jan. 10, 2014, the Court ruled entirely for Elizabeth and Alan, issuing a memorandum decision and order denying the motion to dismiss and granting the motion for preliminary injunction.
Both parties filed Motions for Summary Judgment. MSLF argued
that the Corps of Engineers’ outright ban on the possession of firearms for
self-defense on Corps-managed property was completely unconstitutional. Oral
argument on the motions for summary judgment was held on Aug. 27, 2014, in
Coeur d’Alene, Idaho.
On Oct. 13, 2014, the District Court again ruled entirely for Elizabeth and Alan, granting summary judgment in their favor and denying federal defendants’ motion for summary judgment. In so doing, the District Court held that 36 C.F.R. § 327.13, the Corps of Engineers’ regulation prohibiting the possession of functional firearms, violates the Second Amendment and therefore is unconstitutional. The District Court also enjoined federal defendants from enforcing the unconstitutional regulation on Corps-managed property within Idaho.
On Dec. 10, 2014, federal defendants
filed a Notice of Appeal to the Ninth Circuit Court of Appeals. But, after
the appeal was fully briefed and on the eve of oral argument, federal lawyers
filed an emergency motion stating their clients’ intention to “reconsider the
firearms policy,” which the panel granted, pushing the case into mediation.
As of Dec. 13, 2017, the Corps of Engineers has granted Elizabeth and Alan writer permission to carry loaded firearms on Corps-managed lands in Idaho, Montana, Oregon, and Washington. The Corps of Engineers also affirmatively stated to the Ninth Circuit the Corps “intends to move forward with revising its national policy for the carrying of firearms on its water resource projects in the near future …”
Should the Corps of Engineers decide not to amend its unconstitutional regulation, the Corps will continue to be prohibited from enforcing the ban in Idaho and Mountain States will remain poised to ensure the Corps of Engineers cannot enforce its unconstitutional ban in other states, if necessary.