Reprinted from King County Bar Association Bar Bulletin (September, 2011).
I read KCBA President Joe Bringman’s message in the Bar Bulletin (August, 2011 President’s Page). Many lawyers have the impression that the KCBA is taking political positions that conflict with the conservative principles which animate more than a few lawyers. The President’s comments related to state preemption of local gun control efforts might be commendable as an opinion piece or an expression of his personal opinion. Nevertheless, the fact that he was writing as President to KCBA members raises the issue of whether the President’s Page is an appropriate venue from which to advocate taking a questionable position regarding RCW 9.41.290.
Consider how many lawyers and even judges have CPLs and ask how those of us that “bear arms” as a normal part of our daily routine would be able to navigate our way down the freeway if we have to research the laws of every municipality into which we enter. If it is a challenge for lawyers that are experts when it comes to legal research then what about the non-lawyer that chooses to carry? If judges and lawyers adopt the approach that each man or woman that bears arms also bears the risks of running afoul of a patchwork of confusing laws, the chilling effect will hobble any meaningful exercise of our rights under the U.S. Constitution and SECTION 24 of the Washington State Constitution:
RIGHT TO BEAR ARMS. The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men.
If I go to a park in Seattle using public transportation would I check my gun in with the driver before I get on the bus? If I am walking around Seattle, will the City provide a lock box outside each entrance to a city park the way the courts are required to do by statute? And what about when I park in a municipally owner parking while stopping in a city that has decided to enact legislation prohibiting firearms in vehicles parked in municipal parking lots? The unpredictability and chaos will lead to utter disrespect for the law.
The impact of any potential modification concerning RCW 9.41.290 collides with common sense Local governments are not best situated to determine how to ensure the safety of their citizens. Local lawmakers react to local political pressures often without considering ramifications that involve travelers, visitors and business people that may be carrying large amounts of money with no place to safely store a weapon when they enter an area that restricts firearms. Many states have similar preemption laws and are safer than cities like Chicago where most residents have been prohibited from keeping guns- even in their homes- and the murder rate is out of control. Enacting the President’s proposals for Washington State would create legal chaos and make us less safe!
RCW 9.41.290 states:
The state of Washington hereby fully occupies and preempts the entire field of firearms regulation within the boundaries of the state, including the registration, licensing, possession, purchase, sale, acquisition, transfer, discharge, and transportation of firearms, or any other element relating to firearms or parts thereof, including ammunition and reloader components. Cities, towns, and counties or other municipalities may enact only those laws and ordinances relating to firearms that are specifically authorized by state law, as in RCW 9.41.300, and are consistent with this chapter. Such local ordinances shall have the same penalty as provided for by state law. Local laws and ordinances that are inconsistent with, more restrictive than, or exceed the requirements of state law shall not be enacted and are preempted and repealed, regardless of the nature of the code, charter, or home rule status of such city, town, county, or municipality.
Given the harm all too frequently associated with statist theoreticians, it’s time that we ask whether the benefits provided by our state’s firearms preemption law outweigh any short term political advantages to be gained by modifying state law.
A few years back, the Bar Bulletin published a great article entitled PRYING THE SECOND AMENDMENT’S MEANING FROM THE FOUNDERS’ COLD DEAD HANDS. The well written legal analysis of the Second Amendment was written by a young attorney that started out with negative assumptions about the Second Amendment but she discovered that its provisions are actually very meaningful.
There are presently lawsuits pending in Illinois that will almost certainly establish a right to carry a firearm in many public places. The Washington State Constitution is unequivocal in its legal protection for gun owners and those of us that bear arms. Proposals to modify firearms preemption are actually a giant step back to the patch work laws that have worked to completely deprive many people in Illinois from enjoying a right that residents of most states take for granted; i.e., the right to simply possess a firearm within their own homes!
Things have changed a lot since most of us were in law school. One reason to think soberly and clearly about such proposals is because, as lawyers, we are more likely to be threatened with violence than most people. The threats to judges and prosecutors in particular have been escalating according to a study by the Washington State Board for Judicial Administration (BJA).
There is no evidence that armed citizens are creating a threat by wearing pistols in public places and a concurring opinion in the NORDYKE V KING case (Ninth Circuit, 2009) contained a strong comment as to how effectively the Second Amendment protects Americans from the promiscuous carnage that occurred during the attacks in Mumbai by terrorists armed with automatic rifles. A few guns at the youth camp in Norway could also have saved many lives. An unarmed officer in uniform was one of the victims in the early stages of that attack.
More lawyers should get involved in the full debate about guns. The issues are serious and the public needs the rigorous analysis lawyers can provide on the subject of gun law, not the kind of superficial analyses that politicians and news media often produce.