|Action||Promulgation of new regulation banning concealed firearms in executive branch agency offices|
|Comment Period||Ends 10/21/2016|
The National Rifle Association of America (NRA) offers the following comments on the Proposed Regulation adopting 1VAC30-105 “Regulations Banning Concealed Firearms in Offices Owned or Occupied by Executive Branch Agencies.”
With some five million dues-paying members, the NRA is America’s premier defender of Second Amendment freedoms and the leading proponent of the right of law-abiding Americans to carry firearms for self-defense. As written, the Proposed Regulation would limit the rights of NRA members and all law-abiding individuals who choose to carry firearms for self-defense within the Commonwealth by banning firearms possession in executive office buildings.
As detailed below, the Proposed Regulation exceeds the Department’s authority under Va. Code § 2.2-1102, interferes with the right to bear arms as protected by Article I, § 13 of the Constitution of Virginia and the Second and Fourteenth Amendments of the United States Constitution, and fails to provide substantial evidence for the necessity of this action as required by the Virginia Administrative Process Act. Therefore, the Proposed Regulation should be withdrawn pursuant to Va. Code § 2.2-4016.
I. The Proposed Regulation Exceeds the Department’s Authority.
The Proposed Regulation exceeds the Department’s statutory authority by entering an area of regulation not granted to the Department by the General Assembly.
Virginia’s General Assembly has consistently solidified itself as the primary regulator of the concealed carry of firearms in the Commonwealth. Va. Code § 18.2-308 lays out the general rule that concealed carry is restricted, but Va. Code § 18.2-308.01 provides an exception for individuals who receive a concealed handgun permit by completing an application process that includes a comprehensive background check. The General Assembly has also made it possible for permitees from other states to carry in the Commonwealth under reciprocal agreements. Va. Code § 18.2-308.014.
Rather than identify locations where a permitee may carry a firearm, the General Assembly instead has created a system where permitees may generally carry throughout the state except in locations where such activity is prohibited. Va. Code Ann. § 18.2-308.01(C). The public locations where a handgun carry permittee may not carry a firearm are limited to schools, courthouses, airports, and detention facilities. Va. Code Ann. §§ 15.2-915, 18.2-283.1, § 18.2-287.01, and Va. Code Ann. § 18.2-308.1.
The General Assembly has further ensured its near exclusive regulation of firearms carry by concealed handgun permitees through a ban on local regulation of firearms. Va. Code Ann. § 15.2-915. The ban only has one narrow exception that allows localities to prohibit firearm possession by concealed handgun permit holders in any local or regional jail or juvenile detention facility. Id.
In addition to the above public locations, the General Assembly has also provided that private property owners may prohibit carry by concealed handgun permitees. Va. Code Ann. § 18.2-308.01(C). If the Department were able to generally regulate firearms in executive buildings without specific statutory authority, then that would read the General Assembly’s limitation of authority to only private property owners out of the statute contrary to the rules of statutory construction applied by Virginia courts. Courts of the Commonwealth must “assume that the legislature chose, with care, the words it used when it enacted the relevant statute, and  are bound by those words [when interpreting] the statute.” Barr v. Town & Country Properties, Inc., 396 S.E.2d 672, 674 (1990).
The Virginia Supreme Court has addressed, albeit in a limited manner, the authority certain state agencies have to regulate firearms. In DiGiacinto v. Rector and Visitors of George Mason Univ., the court reviewed the authority George Mason University had in implementing a regulation that prohibited firearms in certain buildings, facilities, and events. 704 S.E.2d 365 (Va. 2011). The court focused on the broad grant of regulatory authority the General Assembly gave to the university under Va. Code Ann. § 23-91.29, the non-public nature of buildings and facilities covered by the regulation, and the limited scope of the regulation. Id. at 370-72. Given these factors, the court found that the university had the authority to support its regulation. Id. at 372.
Applying the Supreme Court’s reasoning from DiGiacinto, the Proposed Regulation fails on the first factor identified by the Supreme Court. Unlike the university, the Department’s grant of regulatory authority is narrow and cannot be read to encompass the regulation of firearms carried by concealed handgun permit holders. The university has broad authority to “make all needful rules and regulations concerning the University . . . .” Va. Code Ann. § 23-91.29(a). In contrast, the Department’s regulatory authority is limited to “[p]rescrib[ing] regulations necessary or incidental to the performance of duties or execution of powers conferred under this chapter . . . .” Va. Code Ann. § 2.2-1102. Prior the current Proposed Regulation, this authority has been used by the Department to carry out duties that were clearly laid out chapter 11, title 2.2 of the Virginia Code.
II. The Proposed Regulation Violates the Right to Bear Arms Protected by Article I, § 13 of the Constitution of Virginia and the Second and Fourteenth Amendments of the United States Constitution.
The Second Amendment to the United States Constitution “guarantee[s] the individual right to possess and carry weapons in case of confrontation.” D.C. v. Heller, 554 U.S. 570, 592 (2008). This right applies state government action by operation of the due process clause of the Fourteenth Amendment to the United States Constitution. McDonald v. City of Chicago, Ill., 561 U.S. 742, 750 (2010). The right to bear arms protected by Article I, § 13 of the Constitution of Virginia is co-extensive with the right protected under the United States Constitution. DiGiacinto, 704 S.E.2d at 369.
In assessing George Mason University’s firearm regulation, the Virginia Supreme Court also addressed the constitutionality of regulations on the right to bear arms. Id. at 368-70. As discussed in section I of these Comments, in upholding the University’s firearm regulation the Supreme Court focused on the non-public nature of buildings and facilities covered by the regulation and the limited scope of the regulation. Id.
The Court noted that “the statutory structure establishing GMU is . . . also consistent with the traditional understanding of a university. Unlike a public street or park, a university traditionally has not been open to the general public . . . .” Id. at 370. While the regulation at issue in DiGiacinto generally covered non-public areas, the Proposed Regulation covers many executive buildings that are necessarily open to the public. Many of the covered buildings, such as Department of Motor Vehicles customer service centers and Virginia’s Alcoholic Beverage Control stores, could not function without public access.
The broad nature of the Proposed Regulation also raises questions of its constitutionality under DiGiacinto. The Proposed Regulation applies to “any building or workplace facility owned, leased, or controlled by or for an executive branch agency, including buildings that support the workplace facility.” In addition to vagueness this provision introduces through its inclusion of “buildings that support a workplace facility, the Proposed Regulation extends its firearms prohibition to executive buildings that are leased by private tenants and even to private property that is leased by an executive agency. In contrast to this broad firearm prohibition, the regulation at issue in DiGiacinto applied only to “academic buildings, administrative office buildings, student residence buildings, dining facilities, or while attending sporting, entertainment or educational events.” 8 Va. Admin. Code 35-60-20.
Because the Proposed Regulation burdens the rights of law-abiding individuals to carry arms “in case of confrontation” in buildings generally open to the public and is not narrowly tailored to only limited “sensitive places” it is unconstitutional under Article I, § 13 of the Constitution of Virginia and the Second and Fourteenth Amendments of the United States Constitution.
III. The Department has Failed to Support the Need for the Proposed Regulation by Substantial Evidence as Required by the Administrative Process Act.
The Administrative Process Act requires that factual aspects of regulations be supported by substantial evidence in the agency record. Avante at Lynchburg, Inc. v. Teefey, 502 S.E.2d 708, 710 (Va. App. 1998).
The Department has failed to support the need for the Proposed Regulation with any evidence. Notably, the Department failed to provide any incident resulting from concealed handgun permit holders carrying in executive office buildings in the last 20 years since Virginia amended its concealed handgun permit law. Instead of providing any evidence, the Department instead issued the conclusory finding that “[a]llowing the carrying of firearms exposes state employees and citizens to unnecessary risk.”
Beyond the basic logic that banning firearms in locations that lack security measures to enforce the ban ensures that only those willing to violate the law will be armed, the Department ignores substantial evidence that “gun-free zones” do little to deter those intent on harming others. Crime Prevention Research Center, The Myths about Mass Public Shootings: Analysis (Oct. 9, 2014).
The lack of evidence supporting the Proposed Regulation is further illustrated by the Commonwealth’s own Economic Impact Analysis. As part of that Analysis, the Virginia Department of Planning and Budget found that “there is no available data of past incidents of guns entering or being brandished within affected executive branch buildings in Virginia. Thus, any impact of the proposed ban cannot be ascertained due to lack of data.” The Department agreed with this analysis.
Without evidence to show that the Proposed Regulation will further its intended goal of increasing public safety in executive office buildings, the Department has failed to comply with the requirements of the Administrative Process Act.
Because the Proposed Regulation exceeds the Department’s statutory authority, violates the rights of law-abiding gun owners within the Commonwealth, and is not supported by substantial evidence within the Department’s record; the Department should withdraw the Proposed Regulation.