Last week, Department of Justice attorneys representing the U.S. Postal Service filed a Motion to Dismiss the suit brought contesting the ban on firearms on Postal Service property. This suit was brought by the Mountain States Legal Foundation on behalf of Debbie and Tab Bonidy as well as the National Association for Gun Rights.

The Bonidys live outside of Avon, Colorado in an area which does not receive home mail service. As a  result, they have to pick up their mail at the Post Office in Avon where they are provided a free mail box. The Bonidys, both of whom have Colorado concealed carry licenses, want to be able to carry a handgun for self-protection on the way to, while, and upon returning from picking up their mail. Current postal regulations prohibit possession of a firearm on USPS property including the parking lots.

The Motion to Dismiss the plaintiffs’ complaint seeks to have it dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6). The Postal Service argues that even if all the facts are true as presented, the Bonidys have failed to state a viable claim. They argue that the Bonidy’s Second Amendment claim is precluded by existing precedents of the U.S. Supreme Court and the Tenth Circuit Court of Appeals. They summarize their argument as follows:

First, the regulation does not even implicate the Second Amendment because that Amendment does not extend so far as to protect the carrying of firearms on postal property. Second, even assuming that the USPS regulation implicates conduct protected by the Second Amendment, the regulation would pass constitutional muster. If the Court reaches the issue, it should follow the vast majority of courts and analyze the USPS regulation under intermediate scrutiny. But the USPS regulation passes muster under any level of constitutional scrutiny, including strict scrutiny. Accordingly, the Court should uphold the USPS regulation and dismiss this lawsuit.

The attorneys for the Postal Service have divided their argument into three parts. First, they argue that the Heller decision made the Second Amendment a limited right. Second, they argue that Postal Service property including parking lots fall into the “sensitive places” exclusion of Heller. Third, they argue that even if the District Court does get to the point of conducting an independent analysis, they will find there is no Second Amendment right to have a handgun on Postal Service property and that intermediate scrutiny is the proper level of scrutiny.

The first of their arguments is that the Second Amendment is a limited right. They start by examining the Heller decision. They note that in Heller, “the Court repeatedly emphasized that the District of Columbia handgun ban extended ‘to the home, where the need for defense of self, family, and property is most acute.'” This emphasis on the home is to point out that the Second Amendment protection outside the home is more limited. They then go through some of the exceptions noted in Heller such as the mentally ill, felons, and laws forbidding the carrying of firearms in “sensitive” places. They then note that the Supreme Court limited the types of weapons protected. However, here they misstate Heller by saying that the Second Amendment protection was limited to “‘those in common use’ at the time of the Amendment’s passage” which implies that we are limited to flintlock pistols, Kentucky rifles, Brown Bess muskets, and fowling pieces.

As part of their argument that the Second Amendment is a limited right, they examine how lower courts have treated the Second Amendment and what level of scrutiny they applied post-Heller. In general, the cases they cite in defense of their position used intermediate scrutiny or some level approximating it if the courts got to the point of applying any level of scrutiny. This level of scrutiny generally requires the challenged law or regulation be substantially related to an important governmental objective.

However, many courts avoided trying to determine any level of scrutiny by comparing the law being challenged on Second Amendment grounds to the list of “longstanding prohibitions” provided in Heller. As an aside, I get the feeling that the Justice Department lawyers are trying to “guide” the District Court to take this approach.

The second of the arguments presented is that the USPS property is a sensitive place and thus the USPS regulations forbidding firearms do not violate the Second Amendment. After a discussion of how the Tenth Circuit and other Courts of Appeal have handled the Second Amendment and felons in possession, they note that courts have extended the logic of Heller “to conclude that prohibitions of firearms beyond those specifically enumerated in Heller do not violate the Second Amendment.” Included in this extension are misdemeanor domestic violence convictions, possession by drug users, and prohibitions against firearm possession by illegal aliens.

If categories of restrictions beyond those enumerated in Heller do not violate the Second Amendment, as the Tenth Circuit has held, then the constitutionality of the USPS regulation, a quintessential “law[] forbidding the carrying of firearms in sensitive places such as schools and government buildings,” Heller, 128 S. Ct. at 2817, follows a fortiori.

They specifically note that courts have interpreted sensitive places broadly. In a Fifth Circuit case, U.S. v Dorosan, a Postal Service employee’s conviction for having a handgun in his car on a USPS parking lot was upheld since they found the Postal Service “used the parking lot as a place of regular government business.” Other places that the Federal courts have found to be sensitive places include park facilities, fairgrounds, aircraft, proximity to a school zone, and National Park lands. On this last location, National Park lands, they devote a full page to U.S. v Masciandaro. This was a 2009 case in Virginia where the court found that though it wasn’t specifically mentioned in Heller it would “fall within any sensible definition of a ‘sensitive place.'” Indeed  this court found that roads and parking lots are even more sensitive because they are “frequented by large numbers of strangers, including children.” The Justice Department attorneys fail, however, to point out that later Congressional action specifically allowed firearms in National Parks as of February 2010.

The third and final argument raised on behalf of the Postal Service is that if this court does undertake an independent analysis it will find that the USPS regulation doesn’t violate the plaintiffs’ Second Amendment rights. Moreover, they argue that the appropriate standard to use is intermediate scrutiny. Their argument is that the USPS regulation is one of the “presumptively lawful regulatory measures” identified in Heller. As such, they say the Bonidy’s claim should be denied as a matter of law.

As Heller expressly approved the comparison of the Second Amendment to the First, 128 S. Ct. at 2799, 2821, this doctrine reinforces the notion that the “presumptively lawful regulatory measures” enumerated in Heller – such as restrictions on carrying firearms in “sensitive places” – are outside the reach of the Second Amendment altogether.

The Justice Department attorneys argue that this court should follow the majority of other courts and apply intermediate scrutiny. They argue that the USPS regulation banning firearms on their property is similar to a “time, manner, place” restriction that would bear intermediate scrutiny in the First Amendment context. The restrictions, they argue, are minor and consistent with the government acting in a proprietary capacity. The example they use for comparison is the USPS restrictions on the solicitation of “alms and contributions on postal premises” by charities.

The conclude their final argument in favor of dismissal by saying that the gun ban on USPS property would pass constitutional muster under any level of scrutiny, even strict scrutiny. They assert that the ban is in the interest of “promoting order and public safety and preventing criminal violence” on Postal Service property which courts have found to be legitimate and compelling. Moreover, the regulations are “narrowly tailored and substantially related to furthering public safety.” They end by quoting an aside from the Dorosan case where the Fifth Circuit Court of Appeals suggested Mr. Dorosan could have just parked elsewhere if he wanted to have a gun in the car and to abide by the regulation.

I do not know how this District Court will look upon this Motion to Dismiss. Nonetheless, this Motion to Dismiss is important outside this immediate case because it gives a good look at the mindset of Justice Department attorneys regarding the Second Amendment within the Obama Administration. Other post-McDonald challenges on Second Amendment grounds have been against states and municipalities and not the Federal government. In this case we see a Federal entity, albeit a semi-autonomous one, which has regulations prohibiting firearms on their property. The argument made by the Justice Department is, in essence, we are the government and we say we have a good reason for the regulation. Therefore, it doesn’t impact your precious little Second Amendment so sit down, shut up, and park elsewhere.