Nessel: Commission can ban guns in the Capitol

Beth LeBlanc Craig Mauger
The Detroit News

The Michigan Capitol Commission is scheduled Monday to reconsider whether firearms are allowed inside the Capitol building after state Attorney General Dana Nessel opined Friday that it could ban them.

But a potential prohibition on concealed carry or openly carried guns and rifles faces an uphill battle because of conflicting legal interpretations about how much power the commission has to change a nine-decade-old policy.

The Capitol Commission has the legal authority to ban firearms inside the state Capitol, Nessel told commissioners in a Friday letter. 

But John Truscott, vice chairman of the commission, said the panel still believes it can't change the policy without action by the Legislature.

Nessel's letter comes as Democratic lawmakers are questioning the policy of allowing firearms in government buildings after they felt intimidated by armed protesters April 30 at the Capitol. Another protest is scheduled to take place May next Thursday at the Capitol. 

Armed men weapons in the Senate gallery on Thursday, April 30.

The Michigan State Capitol Commission has discussed what types of restrictions fall under their authority to impose and is scheduled Monday to speak about "firearms in the Capitol."  

Michigan is one of about a dozen states that allowed the public to generally carry firearms, either concealed or openly, inside capitol buildings, according to a 2013 report from the Michigan Information & Research Service (MIRS News).

But Nessel said the mixture of loaded firearms, body armor and controversial debate is an “absurdly dangerous combination that would cause the heart of any security expert to skip a beat.”

Protesters with rifles watch outside the State Capitol in Lansing, Mich., Wednesday, April 15, 2020. Some Lansing protesters wore masks, but whether for protection from the coronavirus or just to hide their identity isn't certain.

After a review of the commission’s legal authority, Nessel concluded the commission could ban firearms to “ensure the safety of the visiting public” as well as lawmakers.

“…the commission is not constrained from enacting procedures limiting firearms at facilities under its control,” wrote the attorney general, who is a Democrat. “This is especially true where those procedures fulfill its mandate to ‘operate and manage the Michigan state capitol historic site’ in a fashion that ensures the safety of those civil servants who access the Capitol.”

But the Capitol Commission has received informal legal advice from other lawyers who found the panel can't change the policy without legislative action, said Truscott, a commission member and former spokesman for Republican former Gov. John Engler.

"Right now, it’s just an informal letter, the way we view it," Truscott said about Nessel's letter. "We do have information to the contrary as well.”

Michigan's policy dates back to the 1930s, Truscott has said.

The April 30th protest spurred commission discussions about what types of limitations could be impose.

The commission will review the attorney general's order and perhaps seek additional input from a third party, said commission member William Kandler. Even if the commission created a policy banning firearms, it would take time to work out the details regarding how it would be enforced and to whom it would apply. 

"Nobody wants people running around the Capitol leering down at legislators with firearms," said Kandler, an assistant chief of staff to Democratic former Gov. James Blanchard. "I don’t think anyone is comfortable with that. But we also don’t want to pass a policy that is not enforceable.”

The extent to which the commission decides to regulate open or concealed firearms within the Capitol could cause consternation among Republican lawmakers, several of whom have said they carry concealed weapons into the chambers.  

Some have openly carried on the House and Senate floors as well. 

Senate Majority Leader Mike Shirkey, R-Clarklake, received a copy of Nessel's letter and is reviewing it, said Amber McCann, a spokeswoman for Shirkey. 

"The senator has asked staff to review the situation to better understand who does have authority," McCann said. 

Michigan's House and Senate Democrats supported the attorney general's letter, noting the Capitol "should be a place where everyone feels safe and secure."

"The recent intimidation tactics used by protesters have been deeply disturbing, with their actions simply having gone too far," said Sens. Dayna Polehanki of Livonia, Sylvia Santana of Detroit, Erika Geiss of Taylor and Marshall Bullock of Detroit. "While we believe in and support Second Amendment rights, we also need to ensure the safety of those working in, and visiting, our Capitol Building." 

Geiss and Santana also called for further changes in a letter to the commission, including ones that "address and prohibit the presence and use of Nazi Swastikas, hangman nooses and the Confederate battle flag, which are universally accepted forms of hate speech and imagery."

The Michigan House Democrats formally requested an immediate reversal of the House's gun policy in a letter to the commission. 

“Prohibiting firearms within the Michigan State Capitol does not infringe on the constitutional right to bear arms,” said Rep. Sarah Anthony, D-Lansing. “We must safeguard Michiganders’ constitutionally protected rights to speak, assemble and petition the government and protect legislators, staff and the general public from armed intimidation.”

While there are cases challenging the means by which the commission can restrict or limit free speech in the Capitol, none challenge the authority of the commission to impose those restrictions, Nessel said. 

“I understand that if the Commission votes to prohibit firearms within the Capitol building, it may face a legal challenge over this action,” she said. “Consistent with my duties as attorney general, you may rely on my pledge to defend the commission from suit challenging a prohibition on firearms in the Capitol.”

In an interview with NBC News, Gov. Gretchen Whitmer said changing the Capitol's policy on guns was "long overdue." 

Staff Writer Craig Mauger contributed