The topic of carrying firearms in Michigan’s schools.

April 12, 2015

Gun-free-zoneThe Mitten Memo. A blog by Nick Krieger. 

Last month, there were several noteworthy incidents concerning firearms and Michigan schools. For instance, on March 3, a Macomb County assistant prosecuting attorney inadvertently left his loaded revolver at his son’s elementary school.  He was cited and fined $500.  In addition, the Macomb County Concealed Weapons Licensing Board suspended his concealed pistol license (CPL) for six months as required by state law.

On another occasion, a Royal Oak man was seen openly carrying a rifle on his back as he walked near school property in Madison Heights.  This prompted school administrators to call the police and lock down Lamphere High School for about an hour until the man left the area.

And on March 5, a man was observed openly carrying a holstered pistol at a choir concert at Pioneer High School in Ann Arbor. This resulted in a great deal of consternation, causing school officials to call the police, prompting one individual in attendance to interrupt the program by pointing to the man and shaming him, and ultimately leading to a heated public hearing before the Ann Arbor Public Schools Board of Education. At its regular meeting this Wednesday, April 15, the board will vote on a new policy that would ban “dangerous weapon[s]”—including all firearms—from Ann Arbor Public Schools property.

These incidents have caused many people to ask why Michigan law permits anyone to possess a firearm on school property.

The Michigan Constitution provides that “[e]very person has a right to keep and bear arms for the defense of himself and the state.” Thus, while this constitutional right may be restricted in certain circumstances, the general rule is that a person may carry a firearm on his or her person unless a reasonable limitation has been imposed by law.

The Michigan Legislature has imposed several such limitations. For instance, the Legislature has provided that individuals may not carry firearms while under the influence of alcohol, convicted felons may not possess firearms until their rights have been restored, and most people may not carry a concealed pistol without a valid CPL.  The United States Supreme Court has repeatedly upheld such limitations as reasonable.

Is there any limitation that applies to the possession of guns on school property? Here the issue gets a bit more complicated.

Let’s begin with federal law. Under the federal Gun-Free School Zones Act of 1990, as amended, no person may possess a firearm on school property anywhere in the United States unless one of the statutory exceptions applies. One of those exceptions states that an individual may possess a gun in a school zone “if the individual possessing the firearm is licensed to do so by the state in which the school zone is located.”  In other words, while the Gun-Free School Zones Act prohibits individuals without state firearms licenses from carrying guns on school property, it does not apply to state CPL holders.

State law, section 237a(4) of the Michigan Penal Code makes it a 93-day misdemeanor for any person to possess a firearm on school property.  However, this statute specifically states that it does not apply to certain groups of people including police officers, school security guards, and “individual[s] licensed by this state or another state to carry a concealed weapon.”

Section 5o of Michigan’s Firearms Act prohibits CPL holders from carrying concealed pistols in several listed “gun free” areas, including school property.  However, section 5o only prohibits the possession of a “concealed pistol” on these listed premises.  It does not prohibit an individual with a valid CPL from carrying an unconcealed firearm in the listed “gun free” areas.

In short, an individual who does not possess a valid CPL may not carry a firearm—open or concealed—on school property in Michigan.  Nor may an individual with a valid CPL carry a concealed pistol on school property.  However, there is simply no law that prohibits an individual with a valid CPL from openly carrying an unconcealed firearm on school premises.

So what about that proposed Ann Arbor Public Schools policy that would ban all guns?  If it passes on Wednesday, it will be immediately null, void, and unenforceable.  Whether they like it or not, the members of the board of education are constrained by state law, which completely occupies the field with respect to firearm regulation. This means that local governmental bodies—such as city councils, library boards, and school boards—may not enact any firearm regulation that is more restrictive than state law.

It may well be true that the sight of an individual carrying a firearm in a school building is frightening to the young pupils and unsettling to the school staff. But the regulation of guns in Michigan is exclusively a matter for the Legislature.

State Senator Mike Green (R-Mayville) is reportedly working on a compromise bill that would close this so-called “open-carry loophole.” In particular, Green’s bill would prohibit CPL holders from openly carrying firearms on school property, but instead  allow CPL holders to carry concealed pistols at schools. Thus far, however, no such legislation has been introduced. Governor Rick Snyder has previously asked the Michigan Legislature to ban open carry by CPL holders in all “gun free” areas listed in section 5o—including schools.  It is unclear if Snyder continues to support such an extended ban.

Given the makeup of the current Legislature, it is highly unlikely that lawmakers will prohibit all firearms in schools. Either the law will remain as it is today, or the Legislature will ban open carry at schools in exchange for allowing concealed carry at schools.  While it is not certain which of these two options the Legislature will ultimately choose, one thing is clear:  Short of an amendment to state law, the open carrying of firearms on school property by CPL holders will remain legal, and no school board may prohibit it.

Nick Krieger is a graduate of Ludington High School, earned a bachelor’s degree from Michigan State University, and holds a law degree and master’s degree from Wayne State University Law School.  Nick works as an attorney for the Michigan Court of Appeals and owns a home in Ludington. The viewpoints expressed in The Mitten Memo are Nick’s own, and do not reflect the views of the Michigan Court of Appeals or Media Group 31, LLC and its affiliates: Mason County Press, Manistee County Press and Oceana County Press.  Contact Nick via e-mail at [email protected] or follow him on Twitter at @nckrieger.

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