Yesterday the Tenth Circuit heard oral arguments in Bonidy v. United States, which is an as-applied challenge to the U.S. Postal Service regulation which completely prohibits firearms on all postal property, including parking lots. Mr. Bonidy lives in Avon, Colorado, and has a concealed carry permit issued pursuant to Colorado law, following a fingerprint-based background check, safety training, and the County Sheriff’s determination that he does not pose any threat to himself or others.

The post office does not provide home delivery in Avon, so residents must go to the post office to pick up their mail from a box. The local post office is open 24 hours a day, has counter staff 6 hours a day, and provides no security for patrons.

In the District Court, 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.” He ruled the gun ban unconstitutional as applied to Mr. Bonidy and the parking lot at the Avon Post Office. The case thus came to the 10th Circuit on cross-appeals by the parties. Mr. Bonidy is represented by the Mountain States Legal Foundation. Some of the documents in the case (but not the appellate briefs) are available on the website of Michel and Associates, a southern California firm with a specialty in firearms cases. Like me, Michel and Associates has no role in the case.

Here’s my take on some of the issues that the three-judge panel raised at oral argument:

Heller says that “nothing 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 sale of arms.” A footnote adds: “We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.”

First question: What should lower courts do with “presumptively lawful”? Does this mean that any law in the three listed categories (felons/mentally ill, sensitive places, conditions on commercial sale of firearms) must automatically be upheld? After all, as Judge David Ebel pointed out at oral argument, Heller must be construed so as not to “cast doubt” on the listed laws. Doesn’t this mean that all such laws are undoubtedly constitutional?

Let’s try applying that interpretation, to see if it makes sense. Say that a regulation requires that when the owner of a retail gun store goes home for the night, the store must have security devices to prevent/deter theft, including that guns must be locked up. This is an easy fit with the Heller dicta, and can speedily be held as lawful.

But suppose that the anti-theft rule is that every gun in the store must be disassembled before the store closes at night. Or that the gun store may only be open for business five hours per week. Or that only persons with a college degree may work in a gun store. All of these would be “conditions and qualifications on the commercial sale of arms.” These laws are manifestly oppressive, extreme, and unreasonable. They should be subject to heightened scrutiny, and with heightened scrutiny applied, should be ruled unconstitutional.

So one way to answer the question about “presumptively lawful” would be to say that the presumption can be overcome. The more unreasonable, oppressive, or excessive the regulation, the better the argument that the presumption has been overcome. In this argument, it also matters whether the regulation is “longstanding.” The Postal Service gun ban only dates back to the early 1970s, just a few years before the District of Columbia enacted its 1975 handgun ban and ban on use of firearms for self-defense in the home. The D.C. ordinances were obviously not “longstanding” by Heller’s standards, and s neither is the postal ban.

Now that we know that the presumption of lawfulness can sometimes be rebutted, the next question is what is the scope of “sensitive places such as schools or government buildings”? We have to take into account that in the single sentence about permissible gun controls, the Supreme Court was providing general guidance, and was not attempting to provide a detailed rule to cover all situations.

So let’s look at “schools.” Is a public elementary school a “sensitive place”? Certainly yes. If any school would be a sensitive place, it would be that type. What about a private school of cosmetology, where all the students and teachers are adults? It would seem dubious that whatever makes many/most schools “sensitive” would apply at the cosmetology school.

So now let’s apply the above to what should be two very easy cases:

1. An adult who has no connection (e.g., children attending) with a public elementary school, and does not have a licensed carry permit, wants to carry his gun into the school building, to watch a play which is open to the public. The “sensitive places” rule is applicable. The adult will have to defeat the presumption that the ban on his carrying is “presumptively lawful.” It will likely be impossible to do so.

2. The owner of the cosmetology school wishes to possess her handgun within the school premises, when she works there late at night, when no pupils are present. The “sensitive places” exception does not apply. There is no presumption that banning the woman from possessing guns on her own business premises is lawful. Under heightened scrutiny, the government will bear the burden of proving that the gun ban is constitutional, and will almost certainly be unable to carry the burden.

Apply the same reasoning to “government buildings.” Courthouses, the White House, and Governors’ mansions easily fall into the “sensitive places” category, at least for visitors. But an enclosed rain shelter at a public park is not a “sensitive place,” even though it is a “government building.”

At oral argument, Judge Timothy Tymkovich asked whether the “sensitive places” rule also applies to parking lots at government buildings. As he pointed out, we shouldn’t read Heller hyper-literally, so that the omission of specifically mentioning parking lots is decisive. The same point could be made about other government property near a building. The White House lawn should qualify as a sensitive place. If we applied “government buildings” with absolute literalness, then guns bans in government garages are always “presumptively lawful” and gun bans in government parking lots never are. That wouldn’t make sense.

As with “government buildings” themselves, the better approach is for parking lots is to consider the sensitivity of the specific place. Almost always, the parking area will be less “sensitive” than the building itself, but it still may be sensitive enough to be within the “sensitive places” rule.

Easy examples: a parking lot underneath or next to the White House is a “sensitive place.” A dirt parking lot at the trailhead of Bureau of Land Management wasteland property in Nevada is not a sensitive place. Even if there is one-man BLM office building next to the parking lot, the parking lot is not sensitive.

So how does this apply to post offices and postal parking lots? We start with the fact that by congressional statute, the United States Postal Service is a monopoly. In order to access ordinary services for day-to-day life, a citizen may have to use the Postal Service. It’s true that in recent years, the monopoly has become easier to evade; for example, people can send e-mail instead of postal mail. But that does not completely eliminate the impact of the monopoly in sometimes forcing citizens to use postal services. And in places like Avon, with no home delivery, in forcing them to use post office buildings. Unlike virtually every other service for which the United States government has created a monopoly for itself, the Avon government postal building is something which people need to use almost every day.

Scholars have been wondering about what factors make places “sensitive.” Some of the guesses are: persons in the place are predominantly minors (schools), places that concentrate adversarial conflict which often generates passionately angry emotions (courthouses, (legislative hearing rooms, professional sports stadiums), or the buildings contain people at acute personal risk of being targets of assassination (many government buildings).

The list could be extended, but it is difficult to think of anything about a post office that makes it especially “sensitive.” This is all the more true for postal parking lots. The crowds may get large during peak mailing season the week before Christmas, but no more so than on a downtown sidewalk during peak commuting times, and sidewalks are definitely not sensitive places.

So: postal parking lots are definitely not sensitive places. (Although they might be if the post office shares building space with some other government offices, depending on the type of office.) The public areas of postal buildings are probably not sensitive places.

Thus, heightened scrutiny is appropriate for the postal ban. While Bonidy argued for strict scrutiny, I am going to use intermediate scrutiny, hypothesizing that the Tenth Circuit will treat the postal ban as a “place” regulation in the time/place/manner analysis.

Step 1: Does the government have an “important” interest as stake. Judge Ebel mentioned two gun-related problems the post office faces: criminals who ship illegal drugs by mail (and who presumably may carry guns when transporting their wares), and people “going postal.”

So in the abstract, the postal service may have an interest in keeping guns off its property. But it has no interest in banning the gun carried by Mr. Bonidy, or other people who have gone through special licensing to be granted a carry permit. A quarter century of state data on concealed carry permitees show that permitees are far more law-abiding than the general population.

“Going postal” is something that has been done only by postal employees, who are not at issue in Bonidy. If someone did “go postal,” it would likely be life-saving if one or more of the postal patrons at the time was armed. There are numerous examples of incipient mass murders being stopped by armed citizens. These include the Clackamas Mall in Oregon (two days before Newtown), and the psychiatrist who shot and stopped a would-be mass murderer at Mercy Fitzgerald Hospital, near Philadelphia, a few weeks ago.

By definition, persons who have been issued a concealed carry permit have been authorized to carry a handgun for lawful protection almost everywhere in a state. They do not become more dangerous when they set foot in a post office. Nor does the licensed carry of a firearm impose any greater risk than does carrying in other public places.

At the Bonidy oral argument, the Assistant U.S. Attorney also argued that the government interest against against guns in general at post offices is easier for employees to enforce if guns are always illegal. This is no different than the District of Columbia’s argument, rejected by the Heller majority, that D.C.’s interest in enforcing laws against criminals having handguns is easier to enforce if handgun possession is always presumptively illegal.

Besides that, if a postal employee sees a patron whose concealed handgun becomes visible (e.g., a gun in a waistband “prints” against back of a person’s shirt when the person bends over), it is simple for the employee to demand that the person produce his concealed carry permit.

It is true that guns left in cars in postal lots might be stolen. The risk is probably much less than most other parking lots, since post office visits tend to be short. Besides, the theft rationale would justify banning all handguns from the home or from all parking lots, since data show that hundreds of thousands of handguns are stolen annually. This would not be constitutional under Heller.

The above analysis indicates that there is no important government interest in banning licensed carry from post offices, and especially little interest in banning guns from postal park lots.

The same facts show that the gun ban as applied to licensed carry does not pass the rest of intermediate scrutiny. Banning licensed carry does not substantially advance any important government interest. Banning licensed carry it not “narrowly tailored” to advance whatever interests the government does have.

As Judge Ebel pointed out, the focus of intermediate scrutiny is on the government, not the plaintiff: what are the government’s interests, and how well does the law advance those interests. This is true, but it many federal courts have looked to the “burden” on the right as part of resolving Second Amendment cases.

As to the burden of being disarmed in a government building, the burden is:

Nil, when the government controls all public access to the building with metal detectors which are manned by armed law enforcement officers. This creates a genuine “gun free zone.” This is what Colorado law requires for state and local government office buildings which wish to ban licensed carry on the premises.

Greatest when the government provides no security at all. For example, when the postal lobby is open at night, but no government employees are there. And in parking lots which are not monitored by government employees.

In-between, but still fairly high when the area at least has government employees who could call for help in case of an attack on the patron. For example, during hours when there is counter service at the post office.

Much less when the government provides an armed guard on the premises, as is sometimes the case at busy urban post offices.

The government complains that if the 10th Circuit affirms Mr. Bonidy’s as-applied challenge, the government will suffer the inconvenience of not having a uniform national policy. This is true, but administrative convenience is not a trump card to defeat the exercise of enumerated fundamental rights. Prohibition is always administratively easier than the alternatives.

Besides, a well-written Tenth Circuit decision on Bonidy and the Avon Post Office might well provide the USPS with all it needs to write a uniform national standard should it choose. For example:

“When the Post Office does not provide an armed security guard in a building or parking lot, postal patrons who have a concealed carry permit may:
–Leave their guns in a locked car while they use the post office, but may not leave the car in the lot after their finish their postal business.
–Carry the gun into the lobby area during times when there is no window service.
–Not carry during times when there is window service.” (This was a tentative concession made by Bonidy’s attorney during oral argument).

The opinion could even add (although I wouldn’t agree), “high-traffic post offices are sensitive places, and guns may be banned there. A postal regulation with a reasonable definition of high-traffic post offices would be upheld.”