July 8, 2021

A limited approach to the gun menace

As noted, the legislature did much to address the issue of the use of force by police.  It took a more cautious approach to the proliferation of guns in part, no doubt, because the state constitution, like the federal, contains unfortunate language regarding weapons.  The state version is worse; it took a misreading of the Second Amendment to convert it into a broad declaration of an individual right to be armed, but the state provision clearly separates the individual right from a collective one:

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.^[56]

Despite that sweeping grant, Senate Bill 5038, recently passed by the legislature and signed by the Governor, establishes some limits as to where guns and other weapons may be carried.  Omitting some details and qualifications, it provides as follows:

Section 1, subsection (1) declares that 

It is unlawful for any person to enter the following places when he or she knowingly possesses or knowingly has under his or her control a weapon:

(a) The restricted access areas of a jail  or of a law enforcement facility . . . ;

(b) Those areas in any building which are used in connection with court proceedings . . .;

(c)  The restricted access areas of a public mental health facility . . . and state institutions for the care of the mentally ill . . . ;

(d) That portion of an establishment classified by the state liquor and cannabis board as off-limits to persons under 21 years of age; or

(e) The restricted access areas of a commercial service airport . . . .

Subsection (1) does not apply to:

(a) A person engaged in military activities sponsored by the federal or state governments, while engaged in official duties;

(b) Law enforcement personnel . . .;

       (c) Security personnel while engaged in official duties.

There is appended a definition of “weapon” but, for no obvious reason, it applies only to (b) above, where it means “any firearm, explosive as defined [by a statute], or any weapon of the kind usually known as slungshot, sand club, or metal knuckles, or any knife, dagger, dirk, or other similar weapon that is capable of causing death or bodily injury and is commonly used with the intent to cause death or bodily injury.”

To confuse matters further, the following definition appears later, and is applied to all of Section 1:   “ ‘Weapon’ as used in this section means any firearm, explosive as defined [by the same statute], or instrument or weapon listed in RCW 9.41.250.”  That statute, in one subsection, lists the following: “slungshot, sand club, metal knuckles and spring blade knife,” and in another subsection “any dagger, dirk, pistol or other dangerous weapon.”  Yet another subsection refers to silencers.  RCW 9.41.250 defines “spring blade knife,” but we are left to wonder what  slungshots and sand clubs are.

Section 1, subsection (2) provides that, except for law enforcement or military personnel, “it is unlawful for any person to knowingly open carry a firearm or other weapon while knowingly at any permitted demonstration. . . .”  The ban applies whether the firearm or other weapon is carried on the person or in a vehicle. “Weapon” has the same meaning as in subsection (1)(b) above.

The ban in subsection (2) does not apply “to the lawful concealed carry of a firearm by a person who has a valid concealed pistol license.” The reference to “firearm” is confusing, as the license would authorize only a pistol.  There is a similar, qualified exemption under Section 1, subsection (1)(a) above,  in which “pistol,” “firearm” and “weapon” are mixed. 

Section 1, subsection (3), continuing the baffling application of conditions and restrictions, provides that, cities, towns, counties, and other municipalities may enact laws

(a) Restricting the discharge of firearms in any portion of their respective jurisdictions . . . . Such laws and ordinances shall not abridge the right of the individual guaranteed by Article I, section 24 of the state Constitution . . . ; and

(b) Restricting the possession of firearms in any stadium or convention center, operated by a . . . municipality, except that such restrictions shall not apply to:

(i) Any pistol in the possession of a person licensed under [state law] or exempt from the licensing requirement . . . ; or

(ii) Any showing, demonstration, or lecture involving the exhibition of firearms.

Cities, towns, and counties [why not “other municipalities?”]  “may enact ordinances restricting the areas in their respective jurisdictions in which firearms may be sold, but, except as [to school zones], a business selling firearms may not be treated more restrictively than other businesses located within the same zone.”

Section 2, perhaps exhibiting a degree of self-interest by legislators, makes it “unlawful for any person to knowingly open carry a firearm or other weapon” on the “west state capitol campus grounds; any buildings on the state capitol grounds; any state legislative office; or any location of a public legislative hearing or meeting during the hearing or meeting.”  "Weapon" is, in somewhat confusing fashion, given the same definition as in subsection (1)(b) above.

However, self-protection and protection of others can go only so far: “Nothing in this section applies to the lawful concealed carry of a firearm by a person who has a valid concealed pistol license.” (Again, the odd combination of pistol and firearm). Apparently, it’s acceptable to be a menace if the gun isn’t brandished before use.    

The statute is a drafting mess, but the more serious problem is that we are limited to half-measures by the self-destructive gun culture, which never will be eliminated until we expunge gun-rights provisions, or those interpreted to grant gun rights, from our constitutions or, as to the Second Amendment, until the Supreme Court recognizes the error it made in Heller and McDonald.

 

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^56. Constitution of the State of Washington, Article I, Section 24.