10th Circuit Appeals Court Diminishes Second Amendment

Law Shield would like to inform our members of yet another adverse gun-rights ruling, this time from the Tenth Circuit Court of Appeals in the Bonidy v. United States Postal Service case.

In Bonidy, the 10th Circuit held, effectively, that the Second Amendment does not (yet) protect gun rights outside the home because the right to bear arms has not been extended to “government buildings,” such as in this case, the government-owned parking lot connected to the U.S. Post Office.

A Colorado man, Tab Bonidy, and the National Association for Gun Rights were the plaintiffs suing the U.S. Post Office.

Bonidy, who is licensed to carry a handgun in Colorado and regularly carries a handgun for self-defense, must drive to Avon, Colorado to collect his mail, but he is barred by federal regulation from carrying a firearm, or parking his vehicle if it contains a firearm, in the USPS lot.

In mid-2010, Bonidy had asked that the regulation be withdrawn, and USPS refused. Bonidy and the National Association for Gun Rights filed their lawsuit in October 2010. The defendants were the United States Postal Service; John Potter, Postmaster General; and Steve Ruehle, postmaster in Avon, Colorado.

In a Colorado federal district court in mid-2013, Judge Richard Matsch upheld the postal ban for the post office lobby (where patrons access their mail boxes), ruling it to be among Heller’s “sensitive places.” But he struck the rule that bars firearms in Postal Service parking lots as unconstitutional.

The district court held, “openly carrying a firearm outside the home is a liberty protected by the Second Amendment [and the] parking lot adjacent to [a local Post Office] is not a sensitive place [such that] an absolute ban on firearms is substantially related to [Defendants’] important public safety objective.”

Both parties appealed to the 10th Circuit: USPS on the parking lot decision and Bonidy on the Post Office building section. Circuit Judges David M. Ebel and Gregory A. Phillips of the 10th Circuit ruled for USPS in both cases:

We… conclude that the regulation is constitutional as to all USPS property at issue in this case, including the Avon Post Office parking lot, 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.

Most worrisome, in our view, is this part of the Tenth Circuit decision: “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.”

It seems clear now that until the nation’s highest court decides to protect the expressly enumerated Second Amendment right to keep and bear arms, lower courts will diminish the fundamental individual right to keep and bear arms in decisions like Bonidy.

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