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Lawyer finds firearms can be banned in Michigan Capitol, but no decision imminent

Beth LeBlanc
The Detroit News

Lansing — An independent legal consultant told the Michigan State Capitol Commission that it can ban or allow firearms in the Capitol building and grounds. 

"That puts the issue to rest with regard to whether we have authority," Commission Chairman Gary Randall said during a Tuesday meeting of the commission. "Now I think it's up to the commission how we want to exercise that authority moving forward."  

Commission members said the opinion was very clear about the "exclusive control" the panel had Capitol operations, including the possession of firearms within the building.

"I was very surprised," said John Truscott, vice chairman for the commission. "I was not of the belief that we had that kind of authority.”

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

Randall opined that the commission had three options: Do nothing, ban long guns or issue a complete ban on firearms. But he noted that a complete ban would require additional security protocols including a magnetometer measures that could cost $250,000 at a minimum. 

The panel said it would conduct further research to determine the best option. The commission's next meeting is July 13.

Commission member Joan Bauer, a Democrat, urged the panel to move quickly on a decision, noting that cost should not outweigh the potential tragedy that could occur with guns present in the Capitol. Commission member William Kandler agreed. 

"We need to focus on what we think the best policy is," Kandler said. "...It’s up to the Legislature whether or not they want to fund it.”

But other members expressed concerns about the cost of upgrades, which would have to be paid by the Legislature, and the cost of potential litigation challenging a ban on firearms. 

Commission member Margaret O'Brien, a Republican, requested the panel get a written commitment from Attorney General Dana Nessel to defend the panel regardless of their decision for or against a gun ban. 

"Does her willingness to defend us apply only if we do what she asks us to do?" O'Brien asked, referring to an earlier letter by the Democratic attorney general opining that the commission had the authority to ban guns and offering to defend the group against litigation challenging such action.

Nessel welcomed the finding but chided the commission for wasting time and money.

"Today’s outside findings were unnecessary and financially wasteful but have confirmed what we said from the beginning," the attorney general said in a statement. "The Capitol Commission must now act swiftly to regulate firearms in our Capitol, much like they are regulated in other places such as courtrooms and schools. The lives of our elected officials as well as the public may ultimately depend upon it.”

During the panel's meeting, Commissioner Kerry Chartkoff said the panel not only had the power to ban firearms but the responsibility to do so in a timely manner. 

"We must, must — as far as I’m concerned — do something to control at least the open carry of weapons in the state Capitol," said Chartkoff, who participated remotely. 

The panel had hired outside attorney Gary Gordon in May to determine whether the commission could ban guns inside the Capitol, which commission members had been told would be challenged all the way to the U.S. Supreme Court. Nessel had found the commission could ban firearms in the building and criticized the panel for hiring a consultant instead of heeding her advice.

Gordon is a longtime government policy lawyer at the firm Dykema whose pay for the consultation was capped at $5,000. 

The Legislature granted the commission “exclusive control” over the Capitol premises when it created the commission to operate and maintain the premises in 2013, Gordon wrote in June 26 memo to commissioners. That control was reinforced with special funding, staff and contract authority, he said.

The only limitation on that authority relates to internal decisions of the House or Senate on allocation of space within the Capitol building or parking lot, Gordon said. 

Furthermore, Gordon wrote, “neither the Second Amendment nor state law act as a blanket prohibition on placing some restrictions on the possession of firearms in the Capitol Building or on its grounds.”

All that being said, any action regarding firearms “will undoubtedly by subject to legal challenge,” Gordon wrote. 

The authority detailed by Gordon was so broad that Randall mentioned the possibility of the Legislature making changes to the statute to limit that authority. 

"On any given day if we had some degree of justification, we could choose to close the building down," Randall said. "I don’t think anybody thinks that much power vested in this commission is wise.” 

The panel has been weighing the potential for changes to rules allowing guns within the Capitol after a series of rallies against Gov. Gretchen Whitmer's stay-at-home restrictions included protesters openly carrying firearms on the Capitol grounds. 

During an April 30 demonstration, several participants stood in the Senate gallery holding guns while lawmakers met on the floor below.

Nessel told the six-member commission May 11 that it had the power to ban guns from the Capitol premises, but commission members anticipated a long legal fight over the issue. 

Some members have recommended the Republican-led Legislature take up the matter instead of the commission, which is primarily tasked with managing the building and its grounds. 

eleblanc@detroitnews.com