Litigation Highlight: District Judge Invalidates Federal Ban on Carrying Guns in Post Offices

On January 12, Judge Kathryn Mizelle of the Middle District of Florida issued a decision in United States v. Ayala striking down a federal law banning the possession of guns in certain federal government buildings and facilities, as applied to post offices.

In Ayala, a U.S Postal Service truck driver with a concealed carry permit carried his firearm in a fanny pack while walking from an employee parking lot to pick up his work truck.  He was arrested and charged with violating 18 U.S.C. § 930(a) for knowingly possessing a firearm in a federal facility.  Ayala moved to dismiss the charge, arguing in relevant part that, “as applied to an ordinary post office,” the statute violates the Second Amendment. 

After describing the inquiry required by Bruen, Judge Mizelle first determined that the societal problems 930(a) seeks to address—safeguarding the public, protecting federal employees and the delivery of mail, and/or preventing intimidation during government proceedings—are not new and have persisted since the Founding.[1]  Specifically, she observed that “[p]assengers of nineteenth-century stagecoaches, which carried mail, ‘risked death or injury if coaches were attacked by robbers or Indians.’”  Despite the presence of these problems and threats around the time of the Founding, she wrote, “the federal government never sought to ban firearms to protect employees or secure mail delivery [and i]n fact . . . armed railway mail clerks with ‘government-issued pistols.’” 

Judge Mizelle suggested that the inquiry might end there: because the societal problems the law addresses are not new and “the first firearms prohibitions in relevantly similar federal buildings did not appear until the mid-twentieth century—over 170 years after the founding,” 930(a) is inconsistent with the Second Amendment.  However, she moved on to consider possible Founding-era analogues to the post office ban.  First, she found that laws banning guns in legislative assemblies, polling places, and courthouses (which Bruen refers to specifically) were not analogous to 930(a) because they covered only buildings that were “centers of government deliberation”—unlike an ordinary post office.  Second, the judge noted that these Founding Era prohibitions were normally time-limited and applied only when the legislature was in session or on Election Day, and that they did not broadly ban firearms in any location at all times.

Judge Mizelle also conducted a more thorough historical survey on her own initiative.  She started with public carry and affray statutes dating back to the Statute of Northampton.  These historical laws, the judge said, restricted arms carrying “before the King’s justices” or officers and might support modern-day bans on carrying guns in a courthouse—but she concluded that “reading ‘officers’ to cover every government employee would come dangerously close to endorsing a de facto ban on public carry.”  From colonial and Founding Era restrictions on carrying guns in legislative assemblies and polling places, Judge Mizelle derived the principle “that governments may restrict firearms possession in places where important and legally definitive governmental decisions are regularly made” such as “courthouses and perhaps high-level executive branch offices.”  Even though some post offices may process mail-in ballots, the judge said, any related firearm restriction would have to be limited the actual time surrounding an election.

Judge Mizelle roundly rejected the idea that the Supreme Court’s past statements regarding locational firearm restrictions—in cases where those laws were not directly at issue—justified 930(a).  For example, the opinion characterized Heller’s endorsement of firearm prohibitions in “schools and government buildings” as “not necessary to the reasoning of [the] case” and “pure dicta.”  Judge Mizelle went further, declaring that “[n]o sound argument exists that either Heller or McDonald or both logically entail a rule that ‘all manners of government buildings’ are sensitive places,” that Bruen similarly does not necessarily characterize government buildings as “settled” sensitive places, and that such a view “would render the analogical reasoning required by Bruen pointless.”  In rejecting application of the Court’s prior statements to the case at bar, Judge Mizelle took a narrow view of what the binding holding of the case is—only, she said, the legal rule as applied to the actual facts of that case.

The opinion closed by addressing three ancillary issues.  First, Judge Mizelle rejected Ayala’s request for an evidentiary hearing at which the government would be required to produce expert evidence on whether a post office is a historically-supported sensitive place.  Rather, the judge held, “whether Ayala’s motion to dismiss should be granted turns on a distinct legal question to which certain historical facts are merely relevant” and thus no evidentiary hearing was required.  Second, the judge determined that accepting a theory under which the government can ban firearms on any government-owned property sweeps too broadly into constitutionally protected conduct and that (due to the numerous areas that are federally owned) “the government’s theory would amount to a nullification of the Second Amendment right altogether.”  Finally, the judge found that the government had failed to raise any argument that it could prohibit Ayala from possessing firearms at work as a federal employee.

Perhaps the most glaring issue with the decision in Ayala is its express rejection of Heller’s statement that the decision is not intended to cast doubt on the constitutionality of laws prohibiting firearms in “government buildings.”  As Professor Eric Segall notes in a brief commentary on the decision, perhaps the obvious course here is to “simply quote[] the passage [] from Heller and uph[o]ld the law as a regulation of guns in a government building.”  Otherwise, the decision can only be read to suggest that Bruen’s embrace of text, history, and tradition repudiated Heller in significant ways.  That’s profoundly odd, because Bruen traces that test to Heller itself.  Why, then, would Heller have articulated a methodology that is based on historical tradition and set forth certain categories of laws that are presumptively valid, if in fact those laws are inconsistent with tradition as Ayala concludes?  The Supreme Court’s steadfast refusal to officially acknowledge any break with past precedent in its Second Amendment decisions—by, for example, “retconning” earlier cases and framing new decisions as wholly consistent with past decisions even when they are not—makes it difficult to treat even dicta as anything less than binding.  If text, history, and tradition has always been the test, then lower court judges presumably have to assume that all statements in the majority opinions in Heller and McDonald are at least generally consistent with that test.

Ayala notes that “the Eleventh Circuit has clearly reminded district courts not to follow dicta blindly.”  But circuits approach the precedential value of Supreme Court dicta differently.  The Eleventh Circuit appears to follow the majority approach in suggesting that courts should accord great deference to Supreme Court dicta but are not bound by such statements.  Other circuits have more forcefully declared that Supreme Court dicta is generally binding on lower courts, including the clear implications of such dicta.  Differing circuit approaches to the issue may increasingly lead to conflicting outcomes given the prevalence of Supreme Court dicta regarding important Second Amendment questions.

I think some criticism of Ayala is over-blown, especially given the purported carve-out for gun bans in locations “where important governmental decisions are regularly made,” passages that appear to limit the holding to “ordinary” post offices, and the government’s apparent failure to raise the employee-restriction argument (one that seems highly persuasive here).  However, the decision ultimately fails to grapple with an essential question: if one accepts that the expansion of the federal government means banning guns on all federally owned land today is “a nullification of the Second Amendment right altogether,” then how should one go about determining which areas to carve out?  While “ordinary” post offices may seem like a logical place to start, national parks likely comprise a much higher percentage of the total area of federally owned land.  The only coherent answer, I think, is to consider the category as a whole and identify areas where the historically-supported governmental interest is the weakest.  Striking down individual locational bans as they happen to be challenged in litigation, by contrast, is unprincipled and likely to lead to lead to under-regulation even through a historical lens.

[1] The opinion found that “the pertinent time period for a Second Amendment (compared to a Fourteenth Amendment) challenge is the founding—not 1868,” and declined to consider evidence from beyond the Founding Era.