So, Nye County commissioners voted in December to pass a “measure” to “roll back” a court order, given over 11 years ago, by a judge prohibiting firearms in the courthouse, which is shared with the county for normal non-judicial county functions. This is normal in rural counties. The minutes aren’t available right now so we don’t have the minutiae for you and have to go by the agenda and what the Review-Journal says.
The order applies to courthouses of the 5th Judicial District (Nye, Mineral, Esmeralda Counties) and prohibits anyone who is not a peace officer from bringing weapons into the courthouse. This would include open and concealed firearms. The order does allow judges to grant permission to carry in courthouses. Please note that the basis for this order is assumed power under the constitution and not the statutes.
Apparently the order stems from a longstanding dispute that the commissioners won’t fund enough security (or any security, it sounds like) at the courthouse. The courthouse has no security screening and no metal detectors. Lane requested but never got the county commission to approve funding to improve security.
The argument the citizens and the county is making is: if the order pertains to judicial spaces, then the non-judicial spaces are under the authority of the county who owns the building. County commissioners agreed that citizens should be allowed to defend themselves especially in the non-court sections. Lane pushes back at the carrying in non-court parts because there is no physical separation of the areas and an armed bad guy could just walk over from the county side to the court side and do their nefarious deeds.
This came to a head, apparently, when citizens started pushing back particularly because of the interference with carry in the non-court part. Citizens have applied for permission to carry in the courthouse and were denied. Lane does grant permission, but in special cases and we’re not entirely sure who to. The permission letters are specific to the individual firearm down to the serial number and swapping firearms requires reapplying.
Now I actually agree that judges do face some risk, but it is way more exaggerated by fear than is represented in reality. However, a mere ban does nothing to enhance safety. The “safety concern” has nothing to do with allowing legally carried guns, it has everything to do with a questionable ban and no real security measures whatsoever.
NRS 202.3673 prohibits concealed carry at building posted “no guns” or have metal detectors at each public entrance. 4.(a). specifically exempts judges and allows any permittee, with permission from a judge, to carry in his or her courtroom and to/from the courtroom, while 4.(d) allows the person in control of the building to given written permission for a permittee to carry. 4.(a)/(d). are probably the inspiration for Lane’s permission scheme. 4.(b) and (c) exempt prosecuting attorneys and public employees in public buildings (although Lane’s order would supersede this).
First off, state law specifically prohibits only concealed carry in posted public buildings or those with metal detectors at each public entrance. Open carry is not prohibited. Concealed carry can already be banned in the building or the court side of it. Someone up to no good, or the type that is prone to impulsive violence, is almost certainly not going to be openly carrying to court.
Secondly, state preemption does not allow anyone but the Legislature to regulate where firearms can and can’t be possessed. Thus, there is no statutory basis for this court order.
NRS 244.364 prohibits any county from banning firearms and it, along with the other three sections, prohibit anyone but the Legislature from banning firearms. This is a dead end, which I’ll explain elsewhere.
However, the court order is based upon what it claims is the independence of the judiciary, citing the state constitution, claiming that it "expressly vests judicial power in the courts which includes the power to supervise and administer the court system without interference by the Executive or Legislative branch." Specifically, Article 3, Sec. 1 and Article 6, Sec. 1 and Sec. 19 are cited. Neither of them say that. Such an interpretation is the judge’s warped interpretation.
He then goes on to claim that the judiciary has the inherent power to regulate itself, including security. Therefore, he has the authority to ban weapons in the courthouse under the penalty of contempt of court.
Another issue was the source of the authority to post “no guns” signs, which the statutes are silent on. Basically, if a public entity wishes to post its buildings, it can do so without any legal reasoning or specific authority. We would argue that the NRS doesn’t actually grant anyone authority to post the signs, it just dictates what the law says when signs are present.
Lane is claiming that his order, based on the above claimed constitutional authority, allows the courthouse to post the signs. This strikes me as odd because the penalty seems to be contempt of court, not a violation of NRS 244.3673, concealed carrying in a posted building. One has to note that if the district attorney won’t prosecute a ..3673 violation, the judge’s only recourse is a summary contempt judgement.
Frankly, I think Lane’s (and most court’s) reasoning with these types of bans are “we can do this and you can’t really stop us” because they can hit you with contempt, order the bailiffs around, and the appeals process is sympathetic to the judge. With the dubious legal reasoning, I consider that petty tyranny.
Now the commissioners are using their own statutory authority over county property for their push-back measure. NRS 244.270 states that the county is in control of county owned real property. Per the opponents of Lane’s order and the commission, this is the commissions authority to issue what they did. However, a reasonable reading of 244.364 means that preemption covers even good local firearm measures which should be technically invalid.
Hope is not a plan
The logic behind this order is stupid. Perhaps if it was a masterful plan crafted to create just enough controversy for the county to approve some security measures, one might appreciate the political maneuvering. Instead, I think this is an extension of magical thinking that is all too common with gun free zones and such bans.
Lane is probably aware that if someone wanted to kill a judge, they could easily do it, which is why he wants some hard security measures. An intent killer could carry a concealed weapon in and do serious damage if said killer was proficient and serious enough. Or, like Reno’s Judge Weller who was shot (non-fatally) through a window by a sniper in a parking garage, the killer could kill from outside the security cordon. Someone bent on mayhem could start at the metal detectors and work their way in from there, as well.
But what I think judges might be worried about is someone who is otherwise legally armed suddenly snapping and drawing a gun. Someone gets an unfavorable decision and in the heat of passion snaps, doing something awful. The reasoning may be that if this person obeys the restriction and disarms, when they temporarily lose it, all they do is yell and maybe punch someone, instead of going for a gun.
If that is the case, I think the fear is stupid and unreasonable. Sure, otherwise good guys do snap but it is extremely rare. The odds of something like that happening are on par with a dude leading a one-man assault on the court room. Better odds are a robbery or targeted violence in the parking lot. Or, if you’re in a metro area, having business at a courthouse and getting violently assaulted on your way to/from the parking area.
Gun free zones don’t work. Lane’s reasoning that the whole building needs to be off limits because someone with a gun wandered to the courtside is asinine. Like placing half the building off-limits is going to make a difference? Killers are not dissuaded by the law against murder. You really need competent screeners and armed guards at the entrance to any secure area make security screening relatively safe.
Any regulation could only apply in the very small chance that an impulsive armed person “breaks bad” one day. Putting parts of a building off-limits to legal carry in a questionable manner for unlikely fears is inappropriate and illogical.
The major unanticipated flaw the Founding Fathers did not foresee was judicial activism leading to legislating from the bench. I’ll not opine long on how (mainly federal) courts are an unelected branch of government that creates law that cannot be challenged. Our common law system that honors court precedence means that judicial review can be used by judges, usually at the state and federal supreme court levels, to make case law that is almost impossible to nullify.
Supreme Courts are the last stop; what they say goes. Legislatures very rarely can actually or functionally overturn bad court decisions and legislatures are not inclined to do so. If a court rules that something is constitutional or not, that’s often the way it is.
Let’s imagine for a second someone challenges the order through the court system. Judge Lane told the commissioners that he would be happy to create a test case, where someone could enter with a small knife, be fined $10 for contempt, and that person could appeal it to the state Supreme Court. He also offered to help in other ways. I can’t tell if Lane is cynically daring people to challenge him (betting that they’d lose, see below) or sincere. But if he’s saying this, he’s probably fairly confident he’ll have his way.
Judges are not likely to vote against their own interest. The state Supreme Court already had an order from the ‘90s saying that guns are banned in its building because of essentially Lane’s reasoning above. A challenge would not go well because the justices would be saying “yes, you can carry a gun in a courthouse as long as the Legislature allows it.” For people who don’t want guns around them it’s highly unlikely they are going to be so principled as that.
State preemption of firearm laws is a non-starter. The easy way for them to tackle this is to use Flores decision (history here). The court ruled that if the Legislature wanted to ban joint county-city library districts from regulating firearms, the Legislature would have specifically named districts (or any other sub-municipal entity other than cities, counties, and towns). Of course, that ruling totally ignored the legislative intent (actually in the bill) that prohibited anybody but the Legislature from making laws.
So, to knock out preemption the decision would read that if the Legislature really meant that courts couldn’t disallow firearms in courthouses, the Legislature would have included courts. So the preemption argument would go nowhere. This is judicial activism and willful ignorance, but there is nothing you can do because final judicial review is the fatal flaw in the constitutional system.
On the constitutional front, the Supreme Court would simply say “separation of powers, independence of the judiciary” and affirm the no-guns rule. It would be a self-serving, disingenuous decision. Since America has vested the final word on constitutional matters in courts, this would be a no-go. A Supreme Court who claims that the independence of the judiciary means that judges can issue orders prohibiting firearms in courthouses without statutory authority is bad precedence.
Don’t expect the legislature to do anything either because it is controlled by Democrats. We’d need a miracle like a takeover of staunch Republicans and Michelle Fiore to fight the separation of powers battle that would result. Practically no legislature has the guts to stand up to a Supreme Court decision. I’d go through a bunch of scenarios but they are unrealistic so I’ll not.
The right thing to do here is get legislation to change the law to create a better legal footing. Since Nye County is pushing the issue and the state is in Democrat control, it is an excellent bet this is going to happen. Legally speaking, changing the law to make the prohibition statutorily illegal rather than just a judge’s fiat is good, although the ultimate outcome (infringement on the right to bear arms) is bad. If we’re gonna infringe on the law, let’s at least honor the rule of law, okay?
The problem with this little challenge is that anti-gun legislators will write a bad law that could affect preemption, the existing permission system in courts, and legal carry in public buildings. I won’t go into more detail so as not to give these idiots any ideas. If this results in more bad legislation, I’m not going to be happy with Nye County for picking an ill-considered fight. Anti-gunners need little excuse to make bad laws. Don’t give them one.
Frankly, judges should be issuing half-baked orders under the threat of contempt. It’s running things by fiat and dishonors the rule of law. Judges have connections; let them get the statutes amended. Yes, we’d disagree with the statute on logical and RKBA grounds, but at least the prohibition would be legal. I’d rather have someone follow a bad law then make stuff up and enforce it solely through power.
Short of going full “shall not be infringed” I’d be willing to concede courthouses as no-guns only if they were required to have metal detectors, armed security, and safe storage in the lobby for armed citizens. Other states do this and they don’t have people killing judges right and left. This is a far balance and compromise in the world of realpolitik. At least we’d be protected outside and wouldn’t have to leave our guns in the car where they could be stolen.
Judge Wanker (not making that up) complained that judges can’t get secure parking and they “have to walk through the front door with the same people they are ruling on (LVRJ quote, not the judge).” What about the average citizen’s safety concerns? Doesn’t a battered woman have the same fears when facing her abusive husband at a divorce hearing?
For those of us in Las Vegas (and I’d assume Reno as well), the area around the courthouses are scummy and potentially dangerous. Since on-site parking is either a joke or unrealistic, in some cases people are walking several blocks to get in the courthouse where cops and some basic level of security is. I don’t feel safe unarmed in these downtown areas and don’t like the fact I’m disarmed on the street, where I can unquestionably be legally armed.
Now far be it from me to suggest solutions in a county where I don’t live and don’t get to vote, but this issue might affect the rest of the state if it results in bad legislation.
Easy answer: The commissioners should fund a couple rent-a-cops to run a metal detector. Setup security and division between the county offices and the courthouse so the judges can pretend to have their own domain. Allow carry in the rest of the building. In Pahrump, the hallway to the courthouse has a metal detector and bailiff. It is and will be stupid political theater, but the order was never about safety, just a fiction to make the judges feel safer.
So, commissioners and Judge Lane, find a compromise. A ban won’t create safety, but spending a few bucks will deter many of the idiots who might do something stupid. If a checkpoint is competently run, and there are armed bailiffs who can kill a gunman, security would be improved. The order can be rescinded, the legal issues go away along with the bad look it creates, the court actually gets safer, and citizens are no longer in legal or physical jeopardy when visiting county offices.
Clayton E. Cramer
Gun Free Zone
The War on Guns
The View From Out West