MI Court of Appeals Affirms Slap-Down of Ban on Open Carry as beyond Legal Authority

Open Carry at Vertical Church
Open Carry at Vertical Church

U.S.A.-(AmmoLand.com)- The saga of  Michigan Secretary of State, radical democrat Jocelyn Benson’s attempt to ban open carry at the Michigan polling places, without the legal authority to do so, continues. After the edict was declared on 16 October by Benson, Tom Lambert and a number of groups supporting the right to arms filed a lawsuit to stop the illegal usurpation of power on 22 October 2020.

Michigan Judge Christopher Murray, of the Michigan Court of Claims, struck down the ban on open carry as exceeding the authority of Secretary Benson, in part, because she did not follow the necessary procedure.

The Attorney General, radical Democrat Dana Nessel, immediately appealed the decision to the Michigan Court of Appeals. The Court of Appeals upheld the decision by the lower court. From the detroitnews.com:

The Michigan Court of Appeals has denied Attorney General Dana Nessel’s appeal of a lower court decision that halted Secretary of State Jocelyn Benson’s open carry ban at polling places, but Nessel immediately appealed to the Michigan Supreme Court.

While the briefs filed in the case raise “legitimate concerns,” the Michigan Legislature already has given the state “important and necessary tools to prevent voter intimidation,” according to the unanimous decision by a three-judge panel.

There already is a law that bans voter intimidation and another that prohibits the brandishing of a firearm in public, the judges noted.

The wording of the ruling is short and clear. The judge emphasizes the legislature has already made voter intimidation and the brandishing of firearms in public illegal. From the ruling by Presiding Judge Patrick Meter:

Voter intimidation is-and remains-illegal under current Michgan law. MCL 168.932(a), 168.744(1); see also 18 USC 594. Second, brandishing a firearm in public is-and remains-illegal under current Michigan law. MCL 750.234(e). Accordingly, anyone who intimidates a voter in Michigan by brandishing a firearm (or, for that matter, threatening with a knife, baseball bat, fist, or otherwise menacing behavior) is committing a felony under existing law, and that law is-and remains-enforceable by our Executive branch as well as local law enforcement.

Benson, who was aided in her campaign bid in 2018 by money from the George Soros funded SOS project. She is one of several Secretary of State officers across the country with radical leftist roots.

The Attorney General, Nessel, has vowed to immediately appeal the decision to the Michigan Supreme Court. The Michigan Supreme Court recently struck down Governor Gretchen Whitmer’s edicts on emergency lockdowns as illegitimate.

It is uncertain if the Michigan Supreme Court will hear the appeal before the election on 3 November 2020.

The legal authority of the state to ban the brandishing of firearms in public would likely be upheld by the Supreme Court of the United States (SCOTUS), under the longstanding law banning the carrying of firearms in such a way as to terrify the population.  An important distinction is made between brandishing and carrying.

Carrying weapons is constitutionally protected. Thus “brandishing” and “carrying” can not be equivalent. People can carry weapons without brandishing them.  The vast majority of the time, people carrying weapons are *not* brandishing them.

Nor can the mere attitude of a person who is terrified of weapons generally be used to define carrying as brandishing. If that were so, any person could alter the law at any time, merely by claiming they were terrified at the mere presence of a weapon.

Thus laws would and could not be general and understood by any person. Someone might be perfectly legal one moment and violating the law the next moment, without any change or action on their part. The law would depend on the subjective attitude of other people.  Such power would not be law, but mere personal caprice.

Such a state of affairs would not be the rule of law. It would be the rule of subjective personal caprice, exactly the opposite of the rule of law.


About Dean Weingarten:

Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.

Dean Weingarten

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hoss
hoss
6 months ago

During the Obama, Biden admin. I saw the nation headed to the crapper, and thought if we make it through this, and elect a Pres. that actually gives a damn about this country, and the people regardless of color, we may have a chance. Enter Trump. At first it wasn’t clear, but very soon it was found he had our best interest at heart. The commie Rat Bastards, traitors, and Democrats spent billions of dollars buying votes, and buying people, like they were just like Biden. Now we have another problem, there are more ballots than voters registered in a… Read more »

Core
Core
6 months ago

It’s beyond evident that the Democrats and their corrupt posse in the courts are hell bent on doing absolutely anything including violating the US Constitution, Law, and Ethics to restrict the power of the people to enculturate inalienable freedoms and liberties at all levels of government. It’s critical to police the ATF, FBI, etc. and legislation creeping into inferior courts for constitutional merits. These rights shall not be infringed! THE ONLY WAY WE WILL STAY A FREE PEOPLE IS TO STOP COMPROMISING WITH DIRTY DEMOCRAT LEADERSHIP AND ENFORCE ARTICLE VI AND DEFUND, DISBAR, AND DISCHARGE ANY OFFICIAL OFFICE FOR KNOWINGLY… Read more »

uncle dudley
uncle dudley
6 months ago

Some Americans have been raised to hate firearms and the mere sight of one on someone’s hip scare’s them to the point of crapping their pants.
I prefer to carry my weapon concealed so I don’t run the risk of smelling someone’s messy drawers from their over reaction.

MICHAEL J
MICHAEL J
6 months ago

These people in authority know what is legal and choosing to ignore laws makes them criminals. Their position gives them an exemption. It’s time to throw these vipers out for doing so and remove permanently by registering them as the law and oath breakers they are.

USMC0351Grunt
USMC0351Grunt
6 months ago
Reply to  MICHAEL J

If I’m not mistaken that would fall under a charge of domestic terrorism, there by being a permanent blotch on the record of the lawbreaker who doesn’t understand the Defend and protect the Constitution part of their oath?

Last edited 6 months ago by USMC0351Grunt
gregs
gregs
6 months ago

many people do not know or care to know what is legal and what is not. they want their feelings to be affirmed as law, and that’s just not how it is. again public education is key, including leo’s, who are charged with enforcing the law, not feelings. also, education of children on the safe/proper handling and usage of firearms, which used to be taught in public schools. the lame stream media is another reason for this mis-information. they incorrectly report on firearms issues and distort the meaning of words. and finally, our government officials who swear an oath of… Read more »

Jonesy
Jonesy
6 months ago
Reply to  gregs

Gregs, they remember a dumb ass as stating such. Sotomeyer