May 11, 2020
LANSING – Attorney General Dana Nessel issued a formal opinion today concluding that the Michigan State Capitol Commission has legal authority to prohibit firearms in the Capitol building.
Relying on past court decisions and current state laws, Nessel determined the Commission can regulate firearms within the areas under its control, including the inside of the Capitol building.
“I firmly believe in the right to protest, the right to demonstrate, and the right to loudly and strongly object to those causes that move us,” Nessel said. “These rights are so fundamental to our democracy that they are enshrined in the First Amendment of our Constitution. But it is also important to remember that the right to protest does not encompass the right to violence, or the right to harm those individuals with whom you disagree.”
Nessel sent a letter to the Commission Friday indicating it had the authority to bar firearms at the Capitol, but some commissioners publicly dismissed the letter saying it was not a formal opinion.
Nessel’s formal opinion issued today follows a request made Saturday from Rep. Christine Greig, the House Democratic leader, who called for action.
“Now is not the time for gamesmanship, partisan politics, or equivocation,” Greig wrote. “Now is the time to take urgent action to protect public safety and the legislative process from those who would do violence to both.”
In her response letter to Greig, Nessel said she was “deeply troubled” by images of crowds flooding the Capitol, armed with assault rifles while legislators debated and deliberated the critical issues of the day. During recent protests at the Capitol, many residents had carried firearms leading lawmakers and other Capitol employees to express that they felt threatened and feared for their safety.
“Members of our Legislature should not have to wear bulletproof vests or be escorted by armed guards in order to serve the People of this State,” Nessel said.
The Attorney General notes that the regulation of firearms generally stems from state statute, but the prohibition of firearms from public spaces does not need to originate from the Legislature.
The Michigan Supreme Court, for example, adopted an administrative order that bars firearms from any courtroom, office or other space used for official court business or by judicial employees without prior approval. That order applies to open carry of firearms as well, Nessel notes, as it was cited in a Court of Appeals decision in an open carry challenge to a school district prohibition of weapons on school grounds.
The Supreme Court also ruled that state law, which preempts regulations by local units of government, does not apply to school districts. Therefore, a non-local unit of government – such as a school district, the Supreme Court or the Michigan State Capitol Commission – may lawfully impose regulations that impact firearms.
“In Michigan, the concept of ‘open carry’ does not provide the unfettered right to bring firearms into any public space,” Nessel wrote in her opinion. “Numerous restrictions already exist on openly carrying firearms in public places.”
The Commission, which manages the Capitol grounds and building, is made up of the Secretary of the Senate, the Clerk of the House of Representatives, two individuals jointly appointed by the Secretary of the Senate and the Clerk of the House, and two individuals appointed by the Governor.
Nessel’s position on restrictions to open carry and weapons possession is consistent with guidance provided to House leaders from the prior administration of the Attorney General’s office.
“With this opinion, it is my fervent hope that the Commission acts responsibly and takes meaningful steps to protect the safety of those at our State Capitol because the wheels of democracy cannot freely turn under the threat of violence,” stated Nessel.