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Opinion: Secretary of State has no legal grounds to ban guns from Michigan polling places

Matthew Larosiere

This election season — as all election seasons recently do — is shaping up to be one for the record books. Between constant talk of voter fraud, meddling and even those pesky Russians, Michigan Secretary of State Jocelyn Benson has decided to toss gun control into the election works, as if we needed more excitement. The move is as senseless as it is unlawful.

Benson sent guidance to election officials across Michigan to assert that open carry of firearms on Election Day within 100 feet of polling places, clerk’s offices or absent voter counting boards is banned. Her justification for this is that prohibiting open carry “in areas where citizens cast their ballots is necessary to ensure every voter is protected” and to prevent “disruption, fear or intimidation.”

Benson’s theory is basically that she can employ the police to remove people under a theory of trespass, Larosiere writes.

This is, of course, nonsense. How often do armed men follow you into the poll booth? How often does the sight of a gun make you suddenly switch party affiliation? It’s just posturing and “do-something” activism with no real beneficiary. But it’s not as harmless as it might first seem.

The ban applies to all polling places, of which the state has hundreds upon hundreds. Most people are only familiar with their designated polling place, and now have to worry about suddenly committing a crime should they unknowingly step within a hundred feet of one while exercising their right to arms. The ban doesn’t require that someone be armed with bad intentions, it’s just a blanket ban on open carry, in a massively vague amount of places, for little to no reason.

There’s also the minor detail that, since Benson isn’t the supreme monarch of Michigan, she lacks the legal authority to ban carrying arms at all. Robert Stevenson, director of the Michigan Association of Chiefs of Police, explained that Benson “issued these administrative rules, but in researching the issue, there’s nothing in the law that gives police the authority to enforce these rules." This kind of makes sense, since the “keeping” and “bearing” of arms is supposed to be a right we enjoy, which precludes it from elimination at the whim of the secretary of state.

Benson’s theory is basically that, if she sets rules, and people don’t follow them, she can employ the police to remove people under a theory of trespass. Of course, if random bureaucrats — elected and unelected alike — were able to create law that easily, our rights wouldn’t mean too terribly much.

I’m not the only one questioning this move either. Open Carry Michigan’s President Joey Roberts has said “litigation is on the table.” All in all, it seems an odd move on Benson’s part to attack the relatively rare practice of open carry. Criminals are known to prefer concealing firearms when up to no good, as it’s a lot harder to get away with stuff as the guy who waltzed up with an AR on his back.

The real reason for this is simple: political signaling and the “othering” of gun owners. Benson’s move treats the right to bear arms as anything but a right, but rather an inconvenience to be dealt with by a hand-wave. It solves a problem that doesn’t exist by creating law in violation of the state constitution, and it warrants serious review.

Matthew Larosiere is the director of legal policy for Firearms Policy Coalition and a senior contributor to Young Voices. He can be found on Twitter @MattLaAtLaw.