Time to challenge unconstitutional statute on City powers over open carry laws

Open Carry campaigns are taking over Grand Rapids streets and campuses. Those who object are told there is nothing that can be done because Section 2 of Act 319 of the Michigan Firearms Code deprives Michigan cities of any power to control guns in their streets and public places. 

It is time to take a new look at Section 2 in the light of Section 29 of Article VII of the Michigan Constitution of 1963 which guarantees cities, townships and counties reasonable control of their streets and public places. Because the Michigan Constitution takes precedence over a state statute, Section 2 of the firearms statute is void, and cities retain their constitutional power of reasonable control over guns on streets and in public places.

Most Michigan residents are aware by now that open carry advocates are on a statewide campaign to demonstrate their power by openly parading with firearms, both pistols and long guns, in schools, public meetings, residential neighborhoods, libraries and any and every public place. 

We saw evidence of this statewide campaign recently in our own community when open carry advocates from outside the area were seen walking with pistols and AR-15 rifles on Wealthy Street demonstrating their right to carry firearms. Just last week a member of the GVSU student senate submitted a resolution supporting unlimited open and concealed carry on the GVSU campus

The open carry people rely on Section 2 of a 1990 statute, 1990 PA 319 (Act 319), passed by the Michigan Legislature at the behest of the NRA. Section 2 deprived cities and other local units of government of their traditional powers to regulate firearms within their boundaries. However, a statute which attempted to deprive cities of all power to regulate motor vehicles on their streets and public places was nullified by the Michigan Supreme Court on the grounds that it conflicted with the powers of a City which are guaranteed in the Michigan Constitution.

Section 2 is an unconstitutional overreach which impermissibly infringes on the rights of citizens of a city to govern themselves.

“Home rule cities are empowered to form for themselves a plan of government suited to their unique needs and, upon local matters, exercise the treasured right of self-governance,” according to the Michigan Supreme Court.

“Except as otherwise provided in this constitution the right of all cities," says the Michigan Constitution of 1963, Article VII, Local Government, Section 29, "to the reasonable control of their highways, streets, alleys and public places is hereby reserved to such local units of government.”

This section traces its origin to the Constitution of 1908 Art. VIII, § 28 which in a similar way provided: 

"No person, partnership, association or corporation operating a public utility shall have the right to the use of the highways, streets, alleys or other public places of any city, village or township for wires, poles, pipes, tracks or conduits, without the consent of the duly constituted authorities of such city, village or township; nor to transact a local business therein without first obtaining a franchise therefor from such city, village or township. The right of all cities, villages and townships to the reasonable control of their streets, alleys and public places is hereby reserved to such cities, villages and townships." [Emphasis mine]

In 1909, at the dawn of the automobile age, the Michigan legislature passed a statute, similar to the Act 319 firearms statute, which provided: 

"Section 9: Local Ordinances Prohibited.--Except as herein otherwise provided, local authorities shall have no power to pass, enforce or maintain any ordinance, rule, or regulation requiring from any owner or chauffeur to whom this act is applicable, any license or permit for the use of the public highways, or excluding any such owner or chauffeur from the free use of such public highways, or in any other way respecting motor vehicles or their speed upon or use of the public highways. No ordinance, rule or regulation contrary to the provisions of this act now in force or hereafter enacted shall have any effect..." [Emphasis mine]

In 1912, in defiance of Section 9 and relying on the City’s power under the Michigan Constitution, the Detroit City Council passed its own local traffic ordinance. In 1913 Donald McGraw was charged under the City ordinance with reckless driving and driving without proper lights. McGraw’s only defense was that the Detroit ordinances was void under state law because state law purported to deprive the City of Detroit of any power to regulate motor vehicles. The City Attorney argued that the state statute was unconstitutional because it deprived cities of their constitutional power of reasonable control over streets and public places. The trial judge agreed and found the defendant guilty. McGraw appealed to the Michigan Supreme Court. The Supreme Court observed that “reasonable control” by the City was not inconsistent with some control by the State but that the state legislature had overreached in attempting to deprive the City of all control. The Supreme Court ruled:

“But as section 9, Act 318, Public Acts 1909, clearly attempts to take away from the cities all control of their highways with reference to the use thereof by motor vehicles, such parts of said section which forbid the cities from exercising reasonable control of their highways as herein defined must be held to be unconstitutional and void," 

The situation with the firearms statute is identical. Section 2 of Act 319 of the firearms code provides: 

"A local unit of government shall not impose special taxation on, enact or enforce any ordinance or regulation pertaining to, or regulate in any other manner the ownership, registration, purchase, sale, transfer, transportation, or possession of pistols, other firearms, or pneumatic guns, ammunition for pistols or other firearms, or components of pistols or other firearms, except as otherwise provided by federal law or a law of this state."

The ruling in McGraw is directly on point. As Section 2, Act 319, Public Acts 1990, expressly attempts to take away from the cities all control of their public places with reference to use of firearms, such parts of said section which forbid the Cities from exercising reasonable control of their public places must be held to be unconstitutional and void.

Constitutional pre-emption of Section 2 of Act 319 is in fact quite common. Both the Judiciary and Michigan universities organized under the Constitution are exempt from Section 2 on constitutional grounds. That’s why you don’t see open carriers in courthouses or on the campus of the University of Michigan.  

Nor is the McGraw case obsolete. It was cited by the Court of Appeals in a 2007 published opinion for the principle that a statute that purported to take away from cities all power to control their streets with reference to motor vehicles is unconstitutional.

I am under no illusions that the NRA will let Section 2 of Act 319 go down without a fight. Michigan Cities are reluctant to assert their constitutional powers to protect their citizens because they know that will involve them in a tough legal battle.

What can the ordinary citizen do? Put pressure on your City Commission, County Commission, or township board to do what the City of Detroit did in 1912. Pass an ordinance in reliance on the City’s inherent constitutional powers and in defiance of the legislature’s unconstitutional overreach. Charge an open carrier with a violation and take the case to the Michigan Supreme Court. Organize and demonstrate until this is done.

We can win this fight.