Bonidy v. United States Postal Service ( 2015 )

FILED
United States Court of Appeals
Tenth Circuit
PUBLISH
June 26, 2015
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
TAB BONIDY; NATIONAL
ASSOCIATION FOR GUN RIGHTS,
Plaintiffs - Appellees/Cross-
Appellants,
Nos. 13-1374, 13-1391
v.
UNITED STATES POSTAL SERVICE;
PATRICK DONAHOE, Postmaster
General; MICHAEL KERVIN, Acting
Postmaster, Avon, Colorado,
Defendants - Appellants/
Cross-Appellees.
BRADY CENTER TO PREVENT GUN
VIOLENCE,
Amicus Curiae.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 1:10-CV-02408-RPM)
Daniel Tenny, Attorney (Stuart F. Delery, Assistant Attorney General, John F. Walsh,
United States Attorney, and Michael S. Raab, Attorney, with him on the briefs), Civil
Division, United States Department of Justice, Washington, D.C. for Defendants-
Appellants/Cross-Appellees.
Steven J. Lechner (James M. Manley, with him on the briefs) Mountain States Legal
Foundation, Lakewood, Colorado, for Plaintiffs-Appellees/Cross-Appellants.
Jonathan L. Diesenhaus, S. Chartey Quarcoo, and Kathryn L. Marshall, Hogan Lovells
US LLP, Washington, D.C.; and Jonathan E. Lowy, Brady Center to Prevent Gun
Violence, Legal Action Project, Washington, D.C., filed an amicus curiae brief for Brady
Center to Prevent Gun Violence.
Before TYMKOVICH, EBEL, and PHILLIPS, Circuit Judges.
EBEL, Circuit Judge.
Plaintiff Tab Bonidy, who has a concealed-carry permit under Colorado law, sued
the United States Postal Service (USPS) challenging 39 C.F.R. § 232.1(l) (hereinafter
“the regulation”), which prohibits the storage and carriage of firearms on USPS property.
Bonidy claims the regulation is unconstitutional as applied to him because it violates his
Second Amendment right to (1) bring his gun into the United States Post Office building
in Avon, Colorado (hereinafter “post office building”), and (2) store the gun in the post
office parking lot while he picks up his mail. The district court ruled, on cross-motions
for summary judgment, that the regulation is constitutional insofar as it prohibits guns in
2
the building, but unconstitutional insofar as it prohibits guns in the parking lot. Both
parties appeal.
We have jurisdiction under 28 U.S.C. § 1291 and conclude that the regulation is
constitutional as to all USPS property at issue in this case, including the Avon Post Office
parking lot, because the Second Amendment right to bear arms has not been extended to
“government buildings.” Government buildings, in this context, includes the government
owned parking lot connected to the U.S. Post Office. Alternatively, even if we were to
conclude that the parking lot did not qualify as a “government building,” we would
uphold this regulation as constitutional as applied to the parking lot under independent
intermediate scrutiny.
I. FACTS
Tab Bonidy lives in a rural area near Avon, Colorado. He has a concealed carry
permit under Colorado law and regularly carries a handgun for self-defense. Avon’s post
office does not deliver mail to residents’ homes; instead, it provides mailboxes in the post
office building, and residents travel there to collect their mail. The post office lobby,
where residents’ mailboxes are located, is open to the public at all times. The post office
does not regularly employ any security officers.
The post office building is a standalone structure with two adjacent parking lots:
one is a restricted-access employee lot, and the other is an unsecured customer lot. A sign
indicates that the customer lot is USPS property. There are also several city-owned public
3
parking options nearby: five spots on the street in front of the post office, and three
parking lots.
Because of the USPS firearms restriction, Bonidy has an assistant pick up his mail
at the post office. Bonidy’s attorney sent a letter to the USPS’s General Counsel asking
whether Bonidy would be prosecuted under the regulation if he carried his firearm into
the post office building or stored it in his vehicle in the post office parking lot while
collecting his mail. The USPS General Counsel replied in the affirmative, stating that
“the regulations governing Conduct on Postal Property prevent [Bonidy] from carrying
firearms, openly or concealed, onto any real property under the charge and control of the
Postal Service.” Aplt. App. A20.
Bonidy sued for declaratory and injunctive relief, claiming that the regulation
violated his Second Amendment right to bear arms for self-defense. After full discovery,
Bonidy and the USPS filed cross-motions for summary judgment. The district court held
that the regulation is constitutional insofar as it pertains to concealed firearms, based on
Peterson v. Martinez, 707 F.3d 1197 (10th Cir. 2013), which held that the Second
Amendment protection does not include a right to carry a concealed firearm outside the
home. The district court, applying a presumption of validity to the Postal Regulation and
apparently applying a form of intermediate scrutiny, concluded that the regulation was
constitutional as it applied to the post office building itself, but it was unconstitutional at
least insofar as it prohibited Bonidy from carrying a gun in his car in the parking lot
consistent with his Concealed Carry Permit. The government appealed the ruling
4
invalidating 39 C.F.R. § 232.1(1) insofar as carrying a gun in a car in the parking lot was
concerned and Bonidy cross appealed, arguing that 39 C.F.R. §232.1(1) was
unconstitutional both with regard to the postal building itself and the adjacent postal
office parking lot.
II. STANDARD OF REVIEW
We review the district court’s grant of summary judgment and interpretation of the
Second Amendment de novo. See Peterson, 707 F.3d at 1207; United States v. Huitron-
Guizar, 678 F.3d 1164, 1165 (10th Cir. 2012). “Summary judgment is proper if, viewing
the evidence in the light most favorable to the non-moving party, there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Peterson, 707 F.3d at 1207.
III. ANALYSIS
Peterson, of course, controls our panel, and in accordance with that opinion we
affirm the district court’s ruling that 39 C.F.R. § 232.1(1) is constitutional insofar as it
pertains to concealed carry, both in the postal building itself and the adjacent parking lot.
With regard to open carry, we affirm the district court’s ruling upholding the
constitutionality of 39 C.F.R. § 232.1(1) insofar as the postal building itself is concerned
and we reverse the district court’s ruling invalidating 39 C.F.R. § 232.1(1) insofar as it
pertains to open carry in the postal office adjacent parking lot.
5
With regard to the issue of open carry, we are constrained by previous Tenth
Circuit precedent. Our precedent on this matter is anchored in a single sentence
contained in District of Columbia v. Heller, 554 U.S. 570 (2008) which extended Second
Amendment rights to private citizens for the first time in U.S. Supreme Court precedent,
holding that Washington D.C.’s ban on handgun possession in the home violates the
Second Amendment. Id., at 635.
In addition to the narrowness of that holding, the United States Supreme Court
then proceeded to emphasize the narrowness by saying,
[N]othing in our opinion should be taken to cast doubt on longstanding
prohibitions on the possession of firearms by felons and the mentally ill, or
laws forbidding the carrying of firearms in sensitive places such as schools
and government buildings, or laws imposing conditions and qualifications
on the commercial side of arms.1
Heller, 554 U.S. at 626–27.
Although one could argue that language was dicta, it was in fact an important
emphasis upon the narrowness of the holding itself and it directly informs the holding in
that case.
Then, to underscore the importance of that language and to remove any doubt
about the care that went into it and its importance in understanding the holding in Heller,
several years later the Court repeated that exact same language, with forceful affirmation.
1
The Supreme Court attached a footnote immediately after this language saying, “We
identify these presumptively lawful regulatory measures only as examples; our list does
not purport to be exhaustive.”
6
In McDonald v. City of Chicago, Illinois, 561 U.S. 742 (2010), a plurality of the Court
said:
We made it clear in Heller that our holding did not cast doubt on such
longstanding regulatory measures as ‘prohibitions on the possession of
firearms by felons and the mentally ill,’ ‘laws forbidding the carrying of
firearms in sensitive places such as schools and government buildings, or
laws imposing conditions and qualifications on the commercial sale of
arms.’ Id., at , 128 S. Ct., at 2816-2817. We repeat those assurances
here. Despite municipal respondent’s doomsday proclamations,
incorporation does not imperil every law regulating firearms.
Id. at 786 (emphasis added).
Bonidy suggests that this language is mere dicta and suggests that we should
disregard it. But, we reject that suggestion. First, we have previously held that we are
“bound by Supreme Court dicta almost as firmly as by the Courts’ outright holdings,
particularly when the dicta is recent and not enfeebled by later statements.” United States
v. Serawop, 505 F.3d 1112, 1122 (10th Cir. 2007); Surefoot LC v. Sure Foot Corp., 531
F.3d 1236, 1243 (10th Cir. 2008). Second, this dicta squarely relates to the holdings
itself, and therefore is assuredly not gratuitous. Third, this dicta was subsequently
repeated largely verbatim and reendorsed by the Court several years later in McDonald,
561 U.S. at 925.
Since Heller and McDonald we have quoted that same sentence and considered
ourselves bound by it. See Peterson v. Martinez, 707 F.3d 1197 (10th Cir. 2013)
(upholding concealed carry restrictions). Thus, our own precedent causes us to conclude
that the Second Amendment right to carry firearms does not apply to federal buildings,
7
such as post offices. Therefore, we uphold the District Court’s ruling that 39 C.F.R. §
232.1(1) is constitutional as to the post office building itself.
Next, we address the application of that prohibition on the U.S. Postal Service
parking lot adjacent to the building itself.
We conclude, on the facts of this case, that the parking lot should be considered as
a single unit with the postal building itself to which it is attached and which it exclusively
serves. There is, in fact, a drop-off box for the post office in the parking lot, meaning that
postal transactions take place in the parking lot as well as in the building. Thus, the
previously quoted language in Heller applies with the same force to the parking lot as to
the building itself.
However, because the parking lot presents a closer question, we offer an equal and
alternative basis for our holding upholding 39 C.F.R. § 232.1(1) as it applies to the
parking lot. This alternative holding assumes that the right to bear arms recognized in
Heller in the home would also apply, although with less force, outside the home. This
seems like a reasonable assumption because the Second Amendment right is “to keep and
bear” arms, and “bear” certainly implies the possibility and even the likelihood that the
arms will be carried outside the home. Also, the Second Amendment right recognized by
the Supreme Court is predicated on the right of self-defense. Heller, 554 U.S. at 595.
The need for self-defense, albeit less acute, certainly exists outside the home as well.
8
Moore v. Madigan, 702 F.3d 933, 935–40 (7th Cir. 2012). 2 However, it is not necessary
for us to make a definitive ruling on this because, as noted below, even assuming a right
to bear firearms outside the home, and even if, contrary to our ruling above, the parking
lot is not itself considered part of a “government building,” we conclude that any such
right Bonidy might possess was not violated here by 39 C.F.R. § 232.1(1) precluding him
from possessing a firearm in the postal parking lot.
If Second Amendment rights apply outside the home, we believe they would be
measured by the traditional test of intermediate scrutiny. See United States v. Reese, 627
F.3d 792, 802 (10th Cir. 2010) (applying intermediate scrutiny to a Second Amendment
as-applied challenge to § 922(g)(8)).
Intermediate scrutiny makes sense in the Second Amendment context. The right
to carry weapons in public for self-defense poses inherent risks to others. Firearms may
create or exacerbate accidents or deadly encounters, as the longstanding bans on private
firearms in airports and courthouses illustrate. The risk inherent in firearms and other
weapons distinguishes the Second Amendment right from other fundamental rights that
have been held to be evaluated under a strict scrutiny test, such as the right to marry and
the right to be free from viewpoint discrimination, which can be exercised without
creating a direct risk to others. Intermediate scrutiny appropriately places the burden on
2
The Court did stress that the right to bear arms for self-defense is not a “right to keep
and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”
Heller, 554 U.S. at 626. So it is clear that this right is neither absolute nor unqualified.
9
the government to justify its restrictions, while also giving governments considerable
flexibility to regulate gun safety.
The USPS is a state actor rather than a private business, so its actions must comply
with the Constitution. However, the fact that the government is acting in a proprietary
capacity, analogous to that of a person managing a private business, is often relevant to
constitutional analysis. The government often has more flexibility to regulate when it is
acting as a proprietor (such as when it manages a post office) than when it is acting as a
sovereign (such as when it regulates private activity unconnected to a government
service).
In Commerce Clause cases, for example, a “basic distinction” exists “between
States as market participants and States as market regulators.” Reeves, Inc. v. Stake, 447
U.S. 429, 436 (1980) (emphasis added). Similar distinctions exist with respect to the First
Amendment. See, e.g., Lehman v. City of Shaker Heights, 418 U.S. 298, 302–04 (1974)
(holding that a city’s decision to exclude political advertisements from its buses was
permissible under the First Amendment because the city was acting as a proprietor);
Adderley v. Florida, 385 U.S. 39, 47–48 (1966) (“The State, no less than a private owner
of property, has power to preserve the property under its control for the use to which it is
lawfully dedicated.”). That distinction between government as market participant and
government as market regulator is relevant here as well.
The USPS is an enormous, complex business. If the USPS were a private
company, it would be in the top 50 of the Fortune 500. In 2013 alone, it processed over
10
158 billion pieces of mail, about 40% of the world’s mail volume, and had a revenue of
$67.3 billion. It employed over half a million Americans, managed a fleet of more than
211,000 vehicles, had more than 31,000 retail offices across the United States, processed
more than 5 million passports, and issued around 95 million money orders. See United
States Postal Service, Postal Facts 2014.
As a government-owned business acting as a proprietor rather than as a sovereign,
the USPS has broad discretion to govern its business operations according to the rules it
deems appropriate. In light of that discretion, the contrast between the regulation
challenged here and the bans struck down in Heller and McDonald is stark. Those bans
regulated wholly private activity and applied directly to every citizen within the
respective jurisdictions. By contrast, the regulation challenged here applies only to
discrete parcels of land owned by the U.S. Postal Service, and affects private citizens
only insofar as they are doing business with the USPS on USPS property. And the
regulation is directly relevant to the USPS’s business objectives, which include providing
a safe environment for its patrons and employees.
This regulation, 39 C.F.R. §232.1(1), is substantially related to the USPS’s
important interest in creating a safe environment for its patrons and employees. As
noted, the USPS has considerable flexibility when operating as a proprietor of a state-
owned business rather than regulating private activity. Our conclusion is further
bolstered by the fact that the regulation applies only to a very limited spatial area (that is,
11
USPS facilities) and affects private citizens only insofar as they are doing business with
the USPS on USPS property.
Of course, administrative convenience and economic cost-saving are not, by
themselves, conclusive justifications for burdening a constitutional right under
intermediate scrutiny. However, such considerations are relevant to our conclusion that
the USPS may create administratively manageable, uniform regulations that apply to all
USPS property and customers, so long as these rules are substantially related to the
USPS’s important interest in employee and customer safety, which tests we find to be
met here.
Bonidy argues that the USPS regulation is overinclusive with respect to its safety
objectives. Unlike most post offices, the Avon post office does not provide residential
delivery, so patrons must personally pick up their mail (or have someone else do so on
their behalf, as Bonidy does). The lobby is open to the public at all times. Bonidy argues
that because the building is relatively unsecured, and there is usually no security guard on
the premises, the regulation forces him to “risk his life to pick up his mail.” Bonidy
argues that the USPS should have devised site-specific safety policies to compensate for
customers’ desire to carry firearms at post offices in rural areas like Avon.
But the USPS is not required to tailor its safety regulations to the unique
circumstances of each customer, or to craft different rules for each of its more than
31,000 post offices, or to fashion one set of rules for its parking lots and another for its
buildings and perhaps another for the steps leading up to the building. Intermediate
12
scrutiny does not require a perfect fit between a rule’s objectives and the circumstances
of each individual subject to the rule. To require the USPS to tailor a separate gun policy
for each of its properties or indeed for its many diverse customers would present an
impossible burden not required by the intermediate scrutiny test.
Bonidy has a licensed concealed-carry permit under Colorado law. But there is no
national registry of firearms carry permits. Gun carry laws differ in different states and
localities, and such laws vary widely in their requirements and level of enforcement.
Consistent with the Supremacy Clause, the USPS and other federal agencies need not
stop every customer at the government’s property lines to inquire whether each has a
valid, active firearms license under state or local law. Local and state laws do not trump
federal laws, and those local and state regulations do not give Bonidy a right to openly
carry a firearm on sensitive federal property. Thus, Bonidy’s right to carry in Colorado
does not undermine the constitutionality of this USPS regulation.
The USPS, as a federal business, may create and enforce a single, national rule
regarding carrying firearms onto postal property. Such regulations will inevitably impact
some individuals more than others. However, an alternative system involving piecemeal
exceptions and individual waivers would be wasteful and administratively unworkable,
and would raise entirely new problems related to fairness, official discretion, and equal
administration of the laws. There is no reason to believe that a regulatory regime in which
ad hoc exceptions are made for people like Mr. Bonidy would be superior, as a matter of
sound policy or constitutional law, to a single bright-line rule such as the regulation
13
challenged here. Under a more nuanced or discretionary regime, problems of perceived
unfairness or unreasonableness—and accompanying litigation—would likely multiply,
not disappear. As the Supreme Court has explained:
If Congress and the Postal Service are to operate as efficiently as possible a
system for the delivery of mail which serves a Nation extending from the
Atlantic Ocean to the Pacific Ocean, from the Canadian boundary on the
north to the Mexican boundary on the south, it must obviously adopt
regulations of general character having uniform applicability throughout the
more than three million square miles which the United States embraces. In
so doing, the Postal Service's authority to impose regulations cannot be
made to depend on . . . factors that may vary significantly within a distance
of less than 100 miles.
U. S. Postal Serv. v. Council of Greenburgh Civic Associations, 453 U.S. 114, 133
(1981).
We do not second-guess the wisdom of the USPS’s determination that its business
operations will be best served by a simple rule banning all private firearms from postal
property; our role is limited to inquiring whether that rule violates the Constitution, and
we conclude that it does not. The regulation is sufficiently tailored to the USPS’s
important interest in safety under an intermediate scrutiny analysis.
The USPS is not constitutionally required to tailor a separate gun carry policy with
respect to each of its properties. It suffices that the regulation as a whole is substantially
related to the USPS’s important interest in patron and employee safety. cf., e.g.,
Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 419 (1922) (“Ordinarily a police
regulation, general in operation, will not be held void as to a particular property, although
14
proof is offered that owing to conditions peculiar to it the restriction could not reasonably
be applied.”).
Post office parking lots, including Avon’s, often include collection boxes, so
postal business extends beyond the walls of the building. Further, patrons must often pass
through a USPS-owned parking lot to get to the door of a post office building. Also, the
security of the postal building itself is integrally related to the security of the parking lot
adjacent to it. The security of the postal building and the security of postal services
within the structure are integrally connected with the security of the adjacent lot as well.
Cash and other items of considerable value are often shipped through the postal services
and if guns are considered a security risk in the building, they present a similar risk while
patrons are transporting those materials to or from an immediately adjacent government
owned parking lot. The postal building and the parking lot are operated as a single
integrated facility. In any event, the judgment, made by the postal service in enacting and
applying 39 C.F.R. § 232.1(1), is constitutionally defensible under intermediate scrutiny.
The USPS may constitutionally create a single rule pertaining to guns governing both its
buildings and parking lots.
IV. CONCLUSION
Accordingly, we AFFIRM the district court order to the extent it upheld 39 C.F.R.
§ 232.1(1) as applied to the Avon post office building. We REVERSE the district court
order to the extent it found that regulation unconstitutional as applied to Bonidy’s request
15
to be able to carry a gun in his vehicle onto the Avon post office parking lot. We
REMAND for entry of judgment consistent with this opinion.
16
13-1374, 13-1391, Bonidy v. United States Postal Service
TYMKOVICH, Circuit Judge, concurring in part and dissenting in part:
Tab Bonidy is a licensed gun owner in Colorado who wants to carry his
firearm when he picks up mail from a ski town post office. He asserts a right to
(1) carry a firearm within the post office itself, or, at the very least, (2) store a
gun in his truck in the public parking lot owned by the post office. A federal
regulation prevents him from doing either. 1
Our precedent requires us to apply intermediate scrutiny to this regulation.
And I agree with the majority that under intermediate scrutiny the Postal
Service’s regulation is valid as applied to gun possession inside the post office,
particularly given the Supreme Court’s dicta in District of Columbia v. Heller,
554 U.S. 570 (2008), which deemed regulations of firearms in sensitive places
like government buildings presumptively lawful. It is a close call, but Bonidy has
on balance not rebutted that presumption.
But the presumption of lawfulness associated with sensitivity does not
necessarily hold in the adjacent parking lot. And, to the extent they exist at all,
the unique characteristics supporting the regulation’s validity within the post
office are far weaker in the parking lot. Accordingly, I disagree with the majority
1
The regulation reads in full: “Weapons and explosives. Notwithstanding
the provisions of any other law, rule or regulation, no person while on postal
property may carry firearms, other dangerous or deadly weapons, or explosives,
either openly or concealed, or store the same on postal property, except for
official purposes.” 39 C.F.R. § 232.1(l).
on two points. First, I would explicitly hold in this case that the Second
Amendment applies outside the home instead of assuming but not deciding it
does, as the majority concludes. My view is that the Second Amendment is not
confined to home self-defense, and that conclusion follows naturally from Heller,
McDonald v. City of Chicago, 561 U.S. 742 (2010), historical sources, and
persuasive circuit cases that have considered the issue.
Second, I would affirm the district court’s invalidation of the regulation as
applied in the parking lot. Intermediate scrutiny requires the Postal Service to
prove that its regulation prohibiting Mr. Bonidy from storing his gun in a parked
car is substantially related to an important government interest. It has not.
Of course I agree public safety—at not too amorphous a level of
generality—qualifies as an important government interest. But the government
has not shown that successfully combating potential crime at this location—a run-
of-the-mill post office parking lot in a Colorado ski town—hinges on restricting
the Second Amendment rights of lawfully licensed firearms carriers.
Consequently, it cannot possibly show that preventing those individuals from
storing their firearms in their cars is substantially related to preventing
criminality. Thus, as applied in this case, the regulation restricts far more
conduct than is necessary to protect the asserted government interest.
Because I would AFFIRM the district court’s invalidation of the regulation
as applied to the parking lot, I dissent from that part of the majority opinion.
2
I.
A. The Second Amendment Outside the Home
The Second Amendment protects “the right of the people to keep and bear
Arms.” U.S. Const. amend. II. As I read the Supreme Court’s Second
Amendment cases, coupled with a review of historical sources, the right extends
to self defense outside the home. I would join the Seventh Circuit’s decision in
Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012), in affirming that principle. 2
1. Heller and McDonald on the Scope of the Right
Heller and McDonald do not speak directly to whether the Second
Amendment right extends beyond the home. But we can answer that question by
faithfully applying those opinions and the principles they establish. A fair
reading of those opinions admits no other conclusion than that the right to keep
and bear arms protects gun owners outside the home. We should address the
question directly and provide guidance for our district courts.
Heller explains that the Second Amendment’s meaning and scope flows
2
Of course, as the majority notes, we held in Peterson v. Martinez, 707
F.3d 1197 (10th Cir. 2013), that the scope of the right does not include the right
to carry a concealed firearm outside the home. Id. at 1209. The proposition I
would explicitly decide, rather than assume, is that the more general right to carry
a firearm extends outside the home and must be respected by government entities.
See Peruta v. Cnty. of San Diego, 742 F.3d 1144, 1172 (9th Cir. 2014) (noting
that “prescrib[ing] a particular manner of carry,” e.g., by “favoring concealed
carry over open carry,” does not “offend the Constitution, so long as [the
government] allows one of the two”), reh’g en banc granted, 781 F.3d 1106 (9th
Cir. 2015).
3
from the “normal and ordinary” meaning of its words as understood by “ordinary
citizens in the founding generation.” Heller, 554 U.S. at 576–77. At the
Founding, Americans understood the right secured by the Second Amendment to
be “an individual right protecting against both public and private violence.” Id. at
594 (emphasis added). The Second Amendment protects the right of self-defense,
the need for which is “most acute in the home.” McDonald, 561 U.S. at 767
(emphasis added) (internal quotation marks omitted). But the Amendment also
guarantees the right to “possess and carry weapons in case of confrontation.”
Heller, 554 U.S. at 592. And the founding generation believed the right
important for both “self-defense and hunting.” Id. at 599. Of course, Heller
included a list of multiple locations outside the home where some gun restrictions
might be “presumptively lawful,” id. at 626 (listing schools and government
buildings), naturally implying that restrictions on free carry in other locations
would be granted no such presumption.
Thus, I think it incontestable that the Second Amendment applies outside of
home self-defense. Violence occurs outside the home, and to call the need for
self-defense most acute in the home is to acknowledge it exists elsewhere.
Confrontations do not just occur in the home, and hunting never does. And
clarifying the presumptive lawfulness of firearms regulations in schools and
government buildings would be unnecessary if the Amendment had no force
outside the home. See David B. Kopel, Does the Second Amendment Protect
4
Firearms Commerce?, 127 Harv. L. Rev. F. 230, 235–36 (2014) (“The exception
proves [the] rule . . . . If the Second Amendment only applied to the keeping of
arms at home, and not to the bearing of arms in public places, then there would be
no need to specify the exception for carrying arms in ‘sensitive places.’”).
The Court’s understanding of the Amendment’s key terms bolsters this
conclusion. “Keep arms” means to “have weapons,” and “bear arms” means to
“wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the
purpose . . . of being armed and ready for offensive or defensive action in a case
of conflict with another person.” Heller, 554 U.S. at 582–84 (alterations in
original) (internal quotation marks omitted). Only an unrealistic reading of that
language could restrict the right to the home, and it is hard to believe a founding
generation who routinely carried weapons for protection outside the home and
traveling would agree.
2. The Historical Evidence
To the extent founding-era sources bear on the question, they support this
conclusion.
Heller dubbed Blackstone the “preeminent authority on English law for the
founding generation.” Heller, 554 U.S. at 593–94. Blackstone described the
right to bear arms as the right of “having and using arms for self-preservation and
defence” and the “natural right of resistance and self-preservation.” Id. at 594.
To be sure, he stressed that the right, like others, may be placed under “necessary
5
restraints” to prevent “what would be pernicious either to ourselves or our fellow
citizens.” 1 Commentaries on the Laws of England 140 (1765). But nothing in
Blackstone suggests the right is restricted to the home.
And in what Heller called “the most important early American edition of
Blackstone’s Commentaries,” Heller, 554 U.S. at 594, St. George Tucker
concluded that “Americans understood the right of self-preservation as permitting
a citizen to repe[l] force by force when the intervention of society in his behalf,
may be too late to prevent an injury.” Id. at 595 (quoting 1 Blackstone’s
Commentaries 145–46 (1803)) (alteration in original) (internal quotation marks
omitted). And, speaking in 1803 of the right to bear arms “recognized and
secured in the constitution itself,” Tucker noted that in “many parts of the United
States, a man no more thinks, of going out of his house on any occasion, without
his rifle or musket in his hand, than a European fine gentleman without his sword
by his side.” Michael P. O’Shea, Modeling the Second Amendment Right to Carry
Arms (I): Judicial Tradition and the Scope of “Bearing Arms” for Self-Defense,
61 Am. U. L. Rev. 585, 637–38 (2012).
During the founding era, moreover, Americans were no strangers to firearm
regulation. Laws “regulated the discharge, storage, and aggressive use of
firearms,” and “disarmed people who were considered untrustworthy in some
capacity.” Jonathan Meltzer, Note, Open Carry for All: Heller and Our
Nineteenth-Century Second Amendment, 123 Yale L.J. 1486, 1505 (2014). Yet
6
“there were no direct statutory bans on the carry of arms [outside the home].” Id.
at 1499, 1505. Notably, Boston, New York, and Philadelphia all “prohibited the
shooting of guns within city limits”—further suggesting that carrying firearms
outside the home was a background norm. See id. at 1508.
Paired with the language from Heller and McDonald, this historical
evidence bolsters the conclusion that the drafters of the Second Amendment
enshrined a right extending beyond the home.
3. Other Circuits
Persuasive recent analyses of the Amendment’s text and relevant history by
the Seventh and Ninth Circuits further show that the Amendment protects a right
that extends beyond the home. See Peruta v. Cnty. of San Diego, 742 F.3d 1144,
1152–53, 1172 (9th Cir. 2014), reh’g en banc granted, 781 F.3d 1106 (9th Cir.
2015); Moore, 702 F.3d at 935–36, 942. 3 In Peruta, for example, an exhaustive
analysis of text and history led the court to conclude that “the carrying of an
operable handgun outside the home for the lawful purpose of self-defense . . .
constitutes bearing Arms within the meaning of the Second Amendment.” Peruta,
742 F.3d at 1166 (internal quotation marks omitted; alterations incorporated).
The Seventh Circuit in Moore thought the answer obvious from the Amendment’s
plain meaning and avoided a lengthy historical analysis; simply put, the “Supreme
3
Although the Ninth Circuit will rehear Peruta en banc, the majority
opinion’s careful analysis is made no less persuasive by that pending hearing.
7
Court has decided that the amendment confers a right to bear arms for self-
defense, which is as important outside the home as inside.” Moore, 702 F.3d at
942.
No circuit has held otherwise. With that in mind, I now turn to the
permissibility of this regulation.
B. Intermediate Scrutiny
We apply a “two-pronged approach to Second Amendment claims.”
Peterson v. Martinez, 707 F.3d 1197, 1208 (10th Cir. 2013) (internal quotation
marks omitted). First, we ask “whether the challenged law imposes a burden on
conduct falling within the scope of the Second Amendment’s guarantee.” Id. As
the majority assumes (and I would hold), this regulation burdens the right to carry
a firearm outside the home. When a burden exists, we “evaluate the law under
some form of means-end scrutiny,” id., which requires asking whether an
important state “objective is advanced by means substantially related to that
objective.” United States v. Reese, 627 F.3d 792, 802 (10th Cir. 2010). In light
of our past cases, I agree with the majority that intermediate scrutiny is the
appropriate form of scrutiny for this regulation. 4 But I disagree with the
4
We have generally looked to the restrictiveness of the challenged
regulation in determining the appropriate level of scrutiny. Reese, 627 F.3d at
801–02. In both Reese, see id. at 802–04, and United States v. Huitron-Guizar,
678 F.3d 1164, 1169 (10th Cir. 2012), we applied intermediate scrutiny to
regulations that prohibited firearms at all times and in all locations for an entire
group of people.
8
majority’s conclusion that the ends justify the means in the particular
circumstances here.
1. Our Particular Circumstances
In this as-applied challenge, the central issue is whether this regulation is
constitutional under the “particular circumstances of the case,” notwithstanding
its potential constitutionality in “many of its applications.” United States v.
Carel, 668 F.3d 1211, 1217 (10th Cir. 2011). A “statute may be invalid as
applied to one state of facts and yet valid as applied to another.” Ayotte v.
Planned Parenthood of N. New England, 546 U.S. 320, 329 (2006). Challenging
the enforcement or regulation as to the plaintiff and the particular circumstances
implicated is the “hallmark of an as-applied challenge.” Scherer v. U.S. Forest
Serv., 653 F.3d 1241, 1243 (10th Cir. 2011); see also Citizens United v. Gessler,
773 F.3d 200, 216 (10th Cir. 2014) (“Courts can . . . recognize the overall
propriety of a statutory scheme while still invalidating its application in a specific
case.”).
What are the particular circumstances here? The majority correctly
describes some of the relevant circumstances—for example, that valuable items
are often shipped through the mail. And the government details at length how
criminals have targeted some post offices as well as the administrative benefits
the blanket firearms ban provides the Postal Service. But those realities fail to
fully address this case’s relevant facts.
9
A complete view of the facts here considers the restraints this law places on
who may carry a firearm and where he may carry it. See United States v. Huitron-
Guizar, 678 F.3d 1164, 1166 (10th Cir. 2012) (noting that the right to bear arms
“is qualified by what one might call the ‘who,’ ‘what,’ ‘where,’ ‘when,’ and
‘why’”). The “who” reveals a regulation that makes no distinction between those
that pose heightened security risks and those that do not. As applied here, it
burdens the Second Amendment rights of Bonidy and Coloradans like him who
have passed a background check and are authorized under state law to carry a
concealed handgun. The background check confirms that permit holders have met
a laundry list of minimum standards, including not being subject to any protection
order, not having committed perjury in the past, not abusing drugs or alcohol, and
not posing a threat to themselves or others. See Colo. Rev. Stat. § 18-12-203.
Colorado intended those minimum standards to ensure that concealed carriers
were law-abiding, trustworthy individuals.
The “where” is simple: this post office has no security personnel or
devices—perhaps understandably, since the government provides no evidence of
crime or security threats at this post office. No one suggests that it is an
aberration in this respect; it must be one of many post offices posing no unique
security threat. 5 Without addressing these relevant facts, the government has not
5
Attached as an appendix are two views of rural Colorado post offices that
help illustrate their geography.
10
discharged the burden it bears in an as-applied challenge.
Those are the relevant facts. I turn now to the appropriate intermediate
scrutiny inquiry, as delineated by our as-applied Second Amendment cases.
2. Our As-Applied Second Amendment Cases
We have not often had occasion to apply intermediate scrutiny to an as-
applied Second Amendment challenge. Consequently, our two cases doing so
require close attention.
Our first post-Heller case applying intermediate scrutiny was Reese, which
addressed an as-applied challenge to 18 U.S.C. § 922(g)(8)’s prohibition on
firearm possession for anyone subject to a domestic violence protective order.
Reese, 627 F.3d at 799, 801–02. After concluding that intermediate scrutiny
applied, we asked whether the government had proven that “its objective [was] an
important one and that its objective [was] advanced by means substantially related
to that objective.” Id. at 802. No one there questioned the importance of keeping
firearms away from domestic abusers, whose high recidivism rate means they
pose a heightened risk of violence. The real question was the substantial-relation
inquiry.
In that inquiry, we emphasized the need to determine whether the
regulation was “substantially related to [its] objective in [Reese’s particular]
case.” Id. at 803. Because Reese was subject to a qualifying protective order,
prosecuting him was “consistent with the government’s intended purpose in
11
implementing [the] statute.” Id. at 804. That is, we found substantial relation
because preventing people of his class (those under domestic-violence protective
orders) from possessing guns was precisely the important objective at which the
statute aimed.
To be sure, substantial relation does not require every individual in the
class to exemplify the important objective. In Huitron-Guizar, for example, we
applied intermediate scrutiny to 18 U.S.C. § 922(g)(5)(A), which prohibits
unlawfully present aliens from possessing guns. Huitron-Guizar, 678 F.3d at
1169. Crime control and public safety sufficed as important objectives. Id. at
1170.
We said the statute was substantially related to those objectives, even
though it was “surely a generalization to suggest . . . that unlawfully present
aliens” invariably pose a heightened threat to public safety. Id. We added that
“general laws deal in generalities,” and noted our approval of felon-dispossession
laws despite the reality that not all felons pose a threat of violence. See id. It
was enough that Congress “[might] have concluded” that such aliens posed this
danger, id., although none of the opinion’s facts indicated that Huitron-Guizar
himself posed that heightened danger.
Thus, Huitron-Guizar reaffirms Reese, but adds another element to our
analysis. As in Reese, we rejected Huitron-Guizar’s challenge because preventing
people of his class from possessing firearms was precisely the problem the statute
12
aimed to solve. But the case also establishes that we permit prophylaxis. When
individuals belong to a group posing a heightened threat to a government interest
(like public safety), the government may sometimes apply the statute to them
even absent any individualized indication of heightened risk.
Reese and Huitron-Guizar provide one key principle for discerning whether
a regulation is “substantially related” in an as-applied Second Amendment
challenge: We must ask whether it is “consistent”—in light of the asserted
government interest—to apply the regulation to the plaintiff’s particular
circumstances. Reese, 627 F.3d at 803–04.
To be clear, I do not believe our cases require a substantial relation to each
individual plaintiff. That would transform this inquiry into something like a strict
scrutiny narrow-tailoring regime. Rather, the proper question is whether the
regulation is substantially related to the type of case exemplified by the gun
owner’s claim.
That is why, when we examined the substantial-relationship question in
Huitron-Guizar, we scrutinized the fit of the statute’s generalizations about
unlawfully present aliens “as a group.” Huitron-Guizar, 678 F.3d at 1170
(emphasis added). Similarly, in Reese we endorsed the government’s assertion
that Reese failed to “demonstrate that he belongs to a severable subcategory of
persons as to whom the statute is unconstitutional.” Reese, 627 F.3d 803–04.
Accordingly, a regulation can survive an as-applied challenge even when the
13
plaintiff himself does not pose the threat the regulation aims to solve. Cf. Ward
v. Rock Against Racism, 491 U.S. 781, 801 (1989) (noting in the time, place, and
manner context that “the validity of the regulation depends on the relation it bears
to the overall problem the government seeks to correct, not on the extent to which
it furthers the government’s interests in an individual case”); United States v.
Edge Broad. Co., 509 U.S. 418, 430–31 (1993) (stating courts judge restrictions
“by the relation [they bear] to the general problem” posed, not “by the extent to
which it furthers the Government’s interest in an individual case”).
Thus, an as-applied challenge asks whether it is unconstitutional to apply
the law to a particular category of persons. But not every fact of a case defines
the category; only facts bearing on the right burdened and the interest pursued
shape our inquiry.
Unsurprisingly, therefore, the characteristics of the individual bringing the
as-applied challenge—the “who”—carry great weight, both in defining the
relevant category and in determining whether the government may apply the
regulation in these circumstances. For example, imagine that Bonidy was arrested
during an armed post office robbery. He could not then seriously argue that a
statute aimed at preventing gun violence on postal property bore no substantial
relation to him and other armed robbers.
Similarly, the characteristics of the location at issue—the “where”—bear on
14
this analysis. 6 A regulation may of course speak generally to a type of property.
But the government’s interest may be unusually weak regarding a particular
subcategory of that property—it is not enough to say that every government
building, lot, or park will be treated the same. In such a case, we should hesitate
before holding a prophylactic general regulation substantially related to its
objective.
That location matters to a scrutiny analysis is a familiar part of other areas
of constitutional analysis. For example, in First Amendment forum analysis,
courts examine a property’s “location and purpose” to determine whether it
“constitutes a public forum” and consequently what type of scrutiny to apply. See
United States v. Kokinda, 497 U.S. 720, 728–29 (1990) (plurality opinion); id. at
737–38 (Kennedy, J., concurring) (agreeing that the particular activities taking
place on “this postal [property]” bore on whether the property at issue was
nonpublic). Consequently, courts may scrutinize two otherwise identical
properties differently depending on their location. And in election matters, the
courts have little difficulty in giving appropriately increased weight to the fact
that a particular regulation only restricts electioneering at or near a polling place.
See, e.g., Burson v. Freeman, 504 U.S. 191, 199–200, 211 (1992) (plurality
opinion); Minnesota Majority v. Mansky, 708 F.3d 1051, 1055, 1057–58 (8th Cir.
6
Understandably, Reese and Huitron-Guizar do not make this point
explicitly, since the regulations in those cases banned firearms in every location.
15
2013); Citizens for Police Accountability Political Comm. v. Browning, 572 F.3d
1213, 1215 (11th Cir. 2009); Schirmer v. Edwards, 2 F.3d 117, 122–23 (5th Cir.
1993).
The same point holds for time, place, and manner restrictions after a forum
is deemed “public.” Such restrictions pass muster if they are “justified without
reference to the content of the regulated speech,” are “narrowly tailored to serve a
significant governmental interest,” and “leave open ample alternative channels for
communication of the information.” Rock Against Racism, 491 U.S. at 791. This
tailoring requires the regulation to promote a “substantial government interest that
would be achieved less effectively absent the regulation.” Id. at 799.
Consequently, a regulation cannot “regulate expression in such a manner that a
substantial portion of the burden on speech does not serve to advance its goals.”
Id. By extension, a regulation would be suspect if, as applied, a substantial
portion of its burden on protected rights does not advance its goals because the
alleged problem has not been proven to exist. To be sure, time, place, and
manner restrictions require narrow tailoring, not substantial relation. But the
principle is what matters—a regulation’s validity is dubious where it is largely
futile because the facts do not implicate its asserted objective. Cf. Golan v.
Holder, 609 F.3d 1076, 1083 (10th Cir. 2010) (concluding, in First Amendment
context, that intermediate scrutiny bars content-neutral regulations from
“burden[ing] substantially more speech than necessary to further” government
16
interests).
The importance of the “where” in this case makes it necessary to address
Heller’s laundry list of regulations of persons and “sensitive places” that are
“presumptively lawful” and subject to permissible Second Amendment regulation.
Heller, 554 U.S. at 626–27 & n.26. In Heller, the Court explained that the
holding did not “cast doubt on longstanding prohibitions on the possession of
firearms by felons and the mentally ill, or laws forbidding the carrying of
firearms in sensitive places such as schools and government buildings, or laws
imposing conditions and qualifications on the commercial sale of arms.” Id. at
626–27. Although we are bound by this recent Supreme Court dicta, see Surefoot
LC v. Surefoot Corp., 531 F.3d 1236, 1243 (10th Cir. 2008), nothing about it
ought to short-circuit our analysis of this regulation as applied to this parking lot.
As an initial matter, Heller spoke of “sensitive places,” which could
include some parking lots. But most places are “sensitive” for someone. Surely
that, without more, cannot categorically justify a firearms regulation in all such
places. Such a conclusion would give the government untrammeled power to
restrict Second Amendment rights in any place even plausibly considered
“sensitive.” Our means/ends analysis requires more, particularly when we
consider locations beyond schools and government buildings. By explicitly
listing those locations as examples of sensitive places, Heller placed a thumb on
the scale in favor of considering them sensitive and thus presumptively regulable.
17
See Heller, 554 U.S. at 627 & n.27; see also Josh Blackman, The
Constitutionality of Social Cost, 34 Harv. J.L. & Pub. Pol’y 951, 986 (2011)
(indicating these enumerated locations are “presumptively sensitive”). That
thumb on the scale can certainly be overcome depending on the qualities of the
particular school or government building. 7 But in considering the parking lot,
what matters is that no such thumb on the scale exists for those locations on
which Heller expressed no view. Thus, to be treated as sensitive and
consequently presumptively regulable, they must stand or fall on their own.
A few illustrations explain this point. The White House lawn, although not
a building, is just as sensitive as the White House itself. Consequently, the
7
This appears to be one point on which I part ways with the majority.
Although the list and the facts of this case ultimately lead me to concur in the
judgment regarding the post office building, I do not agree that the dicta
necessarily means “the Second Amendment right to bear arms has not been been
extended to ‘government buildings.’” Maj. Op. at 3. That overreads Heller’s
dicta. While the list could certainly mean the right does not extend to schools or
government buildings, it could just as easily (perhaps more easily) mean the right
extends to those locations but that regulations in those locations presumptively
survive scrutiny at step two of our two-prong Second Amendment analysis. And
the fact that the Heller Court provided its list of exceptions in the course of
explaining that the Second Amendment right is subject to certain limitations, see
Heller, 554 U.S. at 626, suggests it describes presumptively permissible
limitations on the right, not cases where the right is not burdened at all. See
United States v. Chester, 628 F.3d 673, 679 (4th Cir. 2010) (“[T]he phrase
‘presumptively lawful regulatory measures’ suggests the possibility that one or
more of [the] ‘longstanding’ regulations ‘could be unconstitutional in the face of
an as-applied challenge.’”) (quoting United States v. Williams, 616 F.3d 685, 692
(7th Cir. 2010)). To say the right has not been extended to government buildings
is to imply no plaintiff could ever successfully challenge a restriction in any
government buildings. That goes too far.
18
presumption of lawfulness for a regulation penalizing firearm possession there
might approach the categorical. At the spectrum’s other end we might find a
public park associated with no particular sensitive government interests—or a
post office parking lot surrounding a run-of-the-mill post office. Perhaps such
locations are “sensitive” in the sense that the government always has an interest
in protecting its property or visitors. But without more concrete evidence of
particular vulnerability, any presumption of lawfulness for a firearms regulation
cannot control. One who demonstrates a real burden on his Second Amendment
rights in a location that is insufficiently sensitive to justify that burden has
rebutted any presumption of lawfulness that could tip the scales against him under
our two-prong test.
Thus, Heller’s dicta is consistent with this reality: the generally important
government interest of public safety may be more or less critical on the particular
facts of an as-applied challenge. And while generalization is permissible, it is
less permissible if the government’s interest is weaker in a particular subcategory
of cases affected by the regulation. Those principles require invalidating the
regulation as applied in the parking lot.
3. Intermediate Scrutiny’s Application to Our Facts
I agree with the majority that public safety on government property is
important, and no one disputes the government’s interest in regulating its property
in pursuit of that important goal. Thus, I agree that “[t]he government often has
19
more flexibility to regulate when it is acting as a proprietor,” Maj. Op. at 10, to
the degree this simply means that the government’s asserted important interest in
such cases may be weightier than when it “regulates private activity unconnected
to a government service,” id. 8 Nevertheless, the baseline intermediate-scrutiny
inquiry remains the same, including the requirement of “consisten[cy].” Reese,
627 F.3d at 804. And it is inconsistent to apply this regulation to the subcategory
of covered individuals represented here.
First, what is the subcategory? We deal here with lawful concealed carriers
who wish to store their firearms in their car in a federal parking lot that poses no
unique security or criminality concerns. 9 That appropriately considers the
particular circumstances of this case, while remaining focused on the class of
cases (rather than the individual), as we must in an as-applied challenge.
8
I part ways with the majority to the extent it implies that the
intermediate-scrutiny analysis is somehow looser or more forgiving simply
because government-owned property is involved.
9
The category cannot simply be anyone carrying or storing a firearm on
postal property, as the government hints. After all, this is an as-applied
challenge. True, substantial relation to Bonidy himself is not required, and “the
distinction between facial and as-applied challenges is not so well defined that it
has some automatic effect or that it must always control the pleadings and
disposition in every case involving a constitutional challenge.” Doe v. City of
Albuquerque, 667 F.3d 1111, 1124 (10th Cir. 2012). Nevertheless, the distinction
does mean something. We must examine substantial relation to some subcategory
of the entire class of potential violators of a regulation. Otherwise, we would
transform this “as-applied” challenge into a facial challenge, because the
government’s preferred subcategory overlaps entirely with the universe of
potential violators.
20
How can this regulation, as applied to Bonidy, be substantially related to
the interest in preventing crime on postal property? Its “consistency” requires
assuming that the mere act of carrying a permitted firearm increases the
likelihood that one will engage in criminal activities on postal property or
otherwise pose a danger. I see no support for such an assumption. And this
parking lot’s qualities confirm this regulation’s poor fit. The Avon Post Office
parking lot represents a subcategory of post office parking lots implicating no
objectives beyond general public safety objectives. To be sure, some of the
general justifications for applying this regulation (e.g., valuables in the mail)
apply here—but those justifications are true of all post offices.
If applying this criminality-focused regulation to the subcategory of lawful
concealed carriers is dubious, it must be even more dubious to apply it to such a
carrier in the subcategory of covered locations posing no particular risk of
criminality. As the majority itself notes, the post office has not even found it
necessary to “regularly employ any security officers.” Maj. Op. at 3. The
government implies that the location’s specific characteristics are irrelevant. But
as-applied challenges require analyzing the case’s particular circumstances, and I
cannot see how characteristics unique to this location are any less part of those
circumstances than characteristics unique to Bonidy.
Our cases provide a simple limiting principle to my analysis: The
government may restrict a class’s Second Amendment rights when its
21
characteristics demonstrate a heightened risk of firearm misuse. And because
some prophylaxis is permissible, the government may regulate a class member
who has not personally demonstrated a higher risk.
Thus, for example, we rejected the as-applied challenge in Huitron-Guizar,
because every unlawfully present alien is a lawbreaker, which we held made it
reasonable to treat them as posing an elevated risk of criminality. Admittedly,
Congress must generalize to conclude that “those who show a willingness to defy
our law are candidates for further misfeasance or at least a group that ought not
be armed when authorities seek them.” Huitron-Guizar, 678 F.3d at 1170. But
that generalization is at least moored to some quality beyond the mere fact of gun
ownership that justifies the inference. Reese fits easily into this framework, since
anyone subject to a domestic-violence protective order has been determined at
some point to pose a heightened risk of violence.
Conversely, because nothing about the Avon Post Office parking lot or
Bonidy presents a unique security or criminality risk, the Postal Service can only
validate its regulation by asserting that anyone carrying a gun poses a heightened
risk of criminality. That cannot be “substantially related” to a blanket prohibition
on a fundamental right. It is no answer to say that criminals could rob law-
abiding carriers of their guns. That is a possibility, but that is also true of people
who possess firearms solely for home defense, and that did not save the regulation
in Heller. And I cannot see how a wholesale ban on the exercise of a
22
constitutional right for everyone is substantially related to preventing crime that
might occur if criminals robbed some subset of those carriers. The Supreme
Court’s instruction in a different context that we should not second guess a
decision maker’s choice “concerning the most appropriate method for promoting
significant government interests,” Rock Against Racism, 491 U.S. at 800, does not
bar this analysis. I would not second guess the choice; I would evaluate the
choice’s scope. Thus, while I acknowledge that the building’s security is
related—perhaps even “integrally,” as the majority posits—to the parking lot’s
security, that, without more, does not mean they must be treated identically. It
certainly does not mean that if banning Bonidy from carrying his firearm into the
building is constitutional, banning him from storing his firearm in his truck in the
parking lot must also be.
I do not mean to discount the concept of permissible generalization. By
definition, substantial relation allows some generalization. But when the threat to
which generalization allegedly responds is vague and generalized (as the threat of
criminality is here, as applied to parking lots posing no particular security risk),
less generalization is permissible. We would have a different case if we were
dealing with the subcategory of postal parking lots where the government could
have (and had) presented particularized information regarding security threats. In
such a case, that heightened need might make a prophylactic application of this
regulation to a lawful concealed carrier “substantially related.”
23
At any rate, the ease with which the government could alter this regulation
to address its concerns while still respecting the Second Amendment rights of
lawful carriers undercuts any substantial-relation argument. As the district court
noted, rather than a flat ban on gun storage, the regulation could allow
discretionary issuance of permits to “use the parking lot with the gun in a locked
vehicle concealed in a glove compartment or console.” App. 924. Such a policy
would let the Postal Service control the carrying of firearms in locations where
security concerns are indeed so pressing as to make a wholesale ban on firearms
“substantially related” to those goals. Of course, a discretionary decision to deny
the right on such a basis would be subject to an as-applied challenge. And the
Postal Service might well prevail. But it would need to do what it has not done
here—demonstrate facts about the location proving that a wholesale ban on
temporary car storage of guns is substantially related to public safety.
The majority emphasizes this regulation’s temporal and geographic
limitation. Granted, that limitation makes this restriction less burdensome than
one that restricts the right at all times and in all locations for a class of people.
But, assuming Second Amendment rights extend outside the home, no one denies
this regulation burdens them at least somewhat. That reality moves us to the
second part of our two-prong test—the means-end analysis. Temporary or not, the
regulation must still be substantially related to the objective. True, the fact that
this regulation only burdens the right when citizens enter the limited area of
24
government concern evidences some tailoring. But the foregoing discussion
demonstrates its poor fit—one easily rectified—in other areas. Solid tailoring in
some respects cannot salve poor tailoring in others.
To be sure, much of this reasoning applies to some degree to the building
itself. But, as discussed, there is a key distinction between the building and the
parking lot: Heller’s binding dicta. There is a presumption that this government
building is sensitive, which creates a presumption that the regulation within the
post office is presumptively lawful. This means, in theory, that arguments
sufficient to invalidate a regulation in a non-building location might not suffice to
invalidate the same regulation in a building otherwise similar in all material
respects. That question need not be decided here, since the government interests
are not equally weighty when it comes to physically carrying a firearm into the
building versus storing it in the car outside.
In fact, the differences are substantial. The post office is an enclosed
space, which requires patrons to interact in close quarters. Thus, even a lawful
use of the firearm for self defense within the building poses greater risks to
innocent bystanders than it would in the parking lot. And business involving
valuables—a reasonable target for criminals—is transacted within the post office,
not in the parking lot. Finally, since the government’s interest in public safety
obviously encompasses avoiding accidents, there is a material difference between
carrying a firearm on one’s person into the area of heightened concern and storing
25
it in a less accessible location outside that key area. In sum, given both this
government building’s presumptive sensitivity under Heller and the greater
generalization permissible in light of the weightier government interests at stake,
the regulation passes muster within the post office. 10 This is not to foreclose the
possibility that a subcategory of post offices exists in which this regulation would
be impermissible. It is only to say that, although a close call, this post office is
not in that subcategory.
Finally, contrary to the majority’s assertions, this framework would not
require the Postal Service to provide a unique justification for every as-applied
challenge to this regulation. Although no two cases are identical, only some
differences are relevant. The relevant facts here are (1) that Bonidy is a member
of the subcategory of covered individuals that are law-abiding legal firearms
10
Of course, every difference just noted also shows why the parking lot is
insufficiently sensitive to qualify as presumptively regulable. There are surely
non-building locations that are sufficiently sensitive to make regulating firearms
there presumptively lawful. This parking lot is not one of them. This explains
why the majority’s assertion that the sensitive-places language in Heller “applies
with the same force to the parking lot as to the building itself,” Maj. Op. at 8, is
not quite on target. To be sure, examining a location’s similarity to the
enumerated locations of schools and government buildings may aid in
determining whether a particular location is “sensitive.” But that means courts
should look to how similar the location in question is with respect to its
sensitivity, not just its proximity or lack thereof to a government building. For
example, it would be odd if a government field otherwise low on the sensitivity
scale could be transformed into a location where firearms could be forbidden with
little justification by the erection of a public bathroom. Proximity to a
government building, without more, cannot be sufficient to exempt a location
from the Second Amendment.
26
carriers, and (2) that the Avon Post Office parking lot is part of the subcategory
of covered parking lots posing no uniquely heightened security risk. A decision
here would resolve any case with similar facts. And under intermediate scrutiny,
a certain degree of prophylaxis remains permissible. For the same reasons, any
suggestion that my view would require the Postal Service to “craft different rules
for each of its more than 31,000 post offices,” Maj. Op. at 12, is misplaced. 11
And, in the end, “the fact that a given law or procedure is efficient, convenient,
and useful in facilitating functions of government, standing alone, will not save it
if it is contrary to the Constitution, for [c]onvenience and efficiency are not the
primary objectives—or the hallmarks—of democratic government.” Free Enter.
Fund v. Public Co. Accounting Oversight Bd., 561 U.S. 477, 499 (2010)
(alteration in original) (internal quotation marks omitted).
II.
Of course firearms restrictions on government property, in general, bear
some relation to the government’s interest in preserving public safety on its
property. But our cases require substantial relation. The government presents
11
The majority observes that “[l]ocal and state laws do not trump federal
laws,” Maj. Op. at 13, in pointing out that Colorado’s concealed-carry laws do not
necessarily give Bonidy an untrammeled right to carry in the state. This is, of
course, true. See Heller, 544 U.S. at 626 (noting the Second Amendment right is
not a “right to keep and carry any weapon whatsoever in any manner whatsoever
and for whatever purpose”). But that is not Bonidy’s claim. He claims not that
state laws trump federal laws but that the Second Amendment trumps this federal
law.
27
general information about postal property, which might bear on a facial challenge.
Yet it offers no information bearing on the particular facts of this as-applied
challenge. And while it undoubtedly matters that the government is acting as
proprietor here, I believe the majority incorrectly treats that fact as more or less
conclusive. Indeed, the tenor of the majority’s analysis would seem to give the
government free rein to restrict Second Amendment rights based on little more
than showing that it owns the property at issue. At the very least, intermediate
scrutiny demands more. And while the government’s justifications might suffice
to uphold this regulation on rational-basis review, Heller demands more. See
Heller, 554 U.S. at 628 n.27.
Consequently, I would AFFIRM the district court’s invalidation of this
regulation as applied in the parking lot.
Appendix
I find two pictures helpful in visualizing this case. First, I have attached an
aerial view of the Avon Post Office and its parking lot, R., Vol. III at 765.
Second, I have attached a picture of a post office in Tabernash, Colorado
—another example of a rural post office with an unsecured parking lot.
28
Aerial View—Avon Post Office
29
Post Office—Tabernash
30