The federal government’s ban on carrying firearms in U.S. post offices may soon be over, now that the Dept. of Justice’s Office of Legal Counsel has issued an advisory opinion stating the ban does not comply with federal law.
Last month the DOJ also voluntarily withdrew its appeal of a district court decision that held the ban unconstitutional, keeping in place an injunction barring enforcement of the carry ban for those plaintiffs who want to carry “inside an ordinary United States Post Office or the surrounding Post Office property.” The plaintiffs in that case include all members of Firearms Policy Coalition and Second Amendment, but there’s another ongoing lawsuit involving the National Rifle Association and Gun Owners of America as well.
According to the OLC, Attorney General Todd Blanche asked for the office to provide its opinion on 18 U.S. Code § 930, which states “Except as provided in subsection (d), whoever knowingly possesses or causes to be present a firearm or other dangerous weapon in a Federal facility (other than a Federal court facility), or attempts to do so, shall be fined under this title or imprisoned not more than 1 year, or both.”
Subsection (d) is crucially important, because it provides an exemption for “the lawful carrying of firearms or other dangerous weapons in a Federal facility incident to hunting or other lawful purposes.” The OLC interprets that language as protecting the right to carry for self-defense, which is, after all, very much a lawful purpose.
The OLC opinion argues that in order to legally carry, both the entry into the federal facility and the carrying of the firearm must be for a lawful purpose.
This understanding tracks everyday experience with post offices. While most post offices are open to the public, that is not universally the case:There are postal facilities on military bases and past the security cordons at airports. Each is subject to its own statutes and regulations, which limit access to something less than the general public. And there are entirely lawful reasons to bring a firearm into a post office. Forֻ example,ֻweֻ recentlyֻ concludedֻ thatֻ “theֻ Executiveֻ Branchֻ mayֻ not,ֻ consistentֻ withֻ theֻ Constitution,ֻenforceֻ sectionֻ1715”ֻofֻ title 18 to the U.S.ֻCodeֻ toֻ criminalizeֻ theֻ mailingֻ ofֻ “constitutionallyֻ protectedֻfirearms”—a conclusion whose reasoning necessarily implies that section930(a) cannot be enforced in a way that makes it a felony to carry the boxed firearm into the facility from which it would be mailed.
Carrying arms for self-defense when entering a building held open to the public is a paradigmatic lawful purpose. The Supreme Court recognized as much in District of Columbia v. Heller, when it unequivocally statedֻ thatֻ “theֻ inherentֻ rightֻ ofֻ self-defense”ֻ isֻ “centralֻ toֻ theֻ Secondֻ Amendmentֻ right.” And it built on the point in its recent Wolford decision, which recognized that people who carry firearms for self-defenseֻ regularlyֻ visitֻ placesֻ openֻ toֻ theֻ publicֻ “inֻ theֻ course of their daily routines, such as gas stations, convenience stores, restaurants,ֻ coffeeֻshops,ֻ drugֻstores ,ֻgroceryֻ stores,ֻ ‘bigֻ box’ֻstores,ֻ home improvement stores, barber shops or hair salons, dry cleaners, and laundromats.” Although run by the federal government, a post office open to the public is a retail establishment that is analogous to these locations, requiring (typically) brief visits by law abiding citizens to acquire everyday goods and services. Unless the property owner has clearly closed the property to firearms being carried for self-defense, such carrying is presumptively lawful. Yet far from closing post offices to firearms, Congress expressly permitted the carrying of firearms incident to any lawful purpose.
The opinion from DOJ’s Office of Legal Counsel will definitely be a boon to the plaintiffs in the still ongoing lawsuit, which could still continue if DOJ decides not to defend the ban going forward. Anti-gun groups and attorneys general could petition the judge to let them defend the practice in place of the DOJ, but the new opinion casts even more doubt on the legality of the ban.
The lawsuit could also be mooted entirely if the USPS changes its policy and explicitly allows for the lawful carrying of firearms on its property. In fact, the OLC opinion states “the Executive Branch may not enforce 18 U.S.C. § 930(a) or the Postal Service’sֻ regulationsֻ againstֻ aֻ law-abiding individual who carries a constitutionally protected firearm into a post office for the purpose of self-defense.” If Blanche follows the OLC’s guidance, then the carry ban in post offices generally open to the public won’t be enforced against anyone who’s lawfully carrying in the future… at least during this administration.
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