Prohibiting Guns on State Capitol Grounds May Not Have Force of Law

Second Amendment supporters gather at the "Shall Not Be Infringed" rally on the North Dakota State Capitol grounds. (Photo via Facebook)

The “Shall Not Be Infringed” rally took place on the State Capitol grounds in Bismarck on Sunday. We published an article detailing the event last week. About 150 “grassroots North Dakotans” attended in support of the Second Amendment and to show their opposition to recent efforts pushing gun control legislation.

Leading up to the rally, Rep. Rick Becker (R – District 7) — an ardent gun rights advocate and featured speaker at the event — was notified that an Office of Management and Budget policy exists which prohibits the possession of firearms on Capitol grounds. As you can see, the only exceptions are law enforcement, military personnel, and those obtaining written permission from the North Dakota Highway Patrol. As a result of the information, attendees at Sunday’s rally were told not to carry.

I should stress here that OMB’s policy does allow for “lawfully possessed” firearms in locked vehicles. They base this off of North Dakota Century Code (NDCC) 62.1-02-13, which relates to public or private employers not being able to:

“Prohibit any customer, employee, or invitee from possessing any legally owned firearm, if the firearm is lawfully possessed and locked inside or locked to a private motor vehicle in a parking lot and if the customer, employee, or invitee is lawfully in the area.”

So, how is it that OMB thinks that it can wield this kind of authority? Well, as you can see in their policy, they claim it comes from NDCC 54-21-18. But a reading of the statute may cause some doubt as to the validity of their claim:

“… the director may adopt rules to promote the health, safety, and general welfare, to prohibit disturbances and disorderly assemblies, to keep the peace, and to regulate nuisances on the capitol grounds and in any of the buildings located on the capitol grounds. The rules may include regulation of public assemblies and accessibility to the buildings and grounds, obstructions, fees, insurance, forms, indemnification by users, and waiver of insurance and indemnity requirements by the director.” (Emphasis Added)

You’ll notice that I emphasized the word “rules” in the statute. Why? Because when rulemaking authority is granted, agencies are required to go through an approval process for any proposed rules they might have. You can see a background memorandum on that here. The process includes things like notices, hearings, comment periods, etc.

State law also requires Legislative Management to appoint an Administrative Rules Committee each biennium. The committee’s authority in the rulemaking process is significant. In fact, they can make formal objections to and even void certain rules.

In addition, the law also defines “administrative agency”. What’s interesting about this is that the definition does not include the OMB— with some exceptions. And guess what one of those exceptions is? That’s right, except with respect to rules made under NDCC 54-21-18— the very section of law that OMB claims its authority for having such a policy. In other words, any rule (i.e. policy) made under the claim of authority from this section requires that it go through the administrative rules process.

So, did OMB go through the rule making process when it decided to prohibit the possession of firearms on the Capitol grounds? It doesn’t appear so. You can see the Administrative Rules section of the legislative website here. I have yet to find the OMB policy on it. If you can locate it, please let us know. But at this point, it appears this is nothing more than a policy set without the administrative rules process. And what exactly does that mean? Quite simply, the policy does not have the force of law. It’s literally in the same category as their policy on microwave popcorn.

Facilities Management Director John Boyle told Forum News Service’s John Hageman that the OMB policy has likely been around for 30 years. While that may be true, that doesn’t make it a good one. The policy is problematic. Not only does it appear they’re wrongly portraying it as though it has the force of law, but it places a severe limitation upon those who would otherwise choose to carry a firearm as a means of protection for self and others.

I also think it’s worth noting that a section of law that OMB says it’s in “compliance with” is actually less restrictive than the very policy they’ve set. The law is found in NDCC 62.1-02-05 (1):

“An individual who knowingly possesses a firearm or dangerous weapon at a public gathering is guilty of an infraction. For the purpose of this section, ‘public gathering’ means an athletic or sporting event, a school, a church or other place of worship, and a publicly owned or operated building.” (Emphasis Added)

As you can see, this section prohibits possession of a “firearm or dangerous weapon at a public gathering” and then goes on to define exactly what a “public gathering” is. Did you catch the last part that I underlined? The law is specific to buildings— not grounds. In other words, OMB’s policy is more restrictive than the law passed by the legislature.

The job of the North Dakota Legislature is to legislate. Why should one or more unelected individuals be able to craft such a policy and then indicate they’re willing to enforce it as though it’s law? Just how many branches of government do we have in this state?  In this case, we literally have Facilities Management — a department within the Office of Management and Budget — making policy that infringes upon a fundamental right. It’s unacceptable. And it needs to be changed.

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Sources:

  1. https://www.theminutemanblog.com/2019/09/12/shall-not-be-infringed-rally-set-for-sunday-at-state-capitol-in-bismarck/
  2. https://www.nd.gov/omb/sites/omb/files/documents/state-employee/capitol-policies/firearmscomplex.pdf
  3. https://www.legis.nd.gov/cencode/t54c21.pdf#nameddest=54-21-18
  4. https://www.legis.nd.gov/files/resource/committee-memorandum/21.9113.01000.pdf
  5. https://www.nd.gov/omb/sites/omb/files/documents/state-employee/capitol-policies/microwavepopcorn.pdf
  6. https://www.thedickinsonpress.com/news/government-and-politics/4665675-North-Dakota-lawmaker-eyes-changes-after-discovering-guns-prohibited-on-Capitol-grounds?fbclid=IwAR23sM59UPYXF1BVKISSSbeuvfcpEEzTkTPJqOSJUXWHJIRrXU2Abn7ounE#.XYFSVtOCv9I.facebook
  7. https://www.legis.nd.gov/cencode/t62-1c02.pdf#nameddest=62p1-02-05
  8. https://www.legis.nd.gov/cencode/t62-1c01.pdf
  9. https://www.legis.nd.gov/agency-rules/north-dakota-administrative-code
  10. https://www.legis.nd.gov/cencode/t28c32.pdf#nameddest=28-32-13
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About T. Arthur Mason 702 Articles
T. Arthur Mason is a native North Dakotan who has spent nearly all of his life in the Peace Garden State. As the third of four children in Western North Dakota, Mason grew to appreciate family and the outdoors. Some of his fondest memories are annual deer hunts with family and friends. In his early teenage years, faith became a central part of T. Arthur Mason's life. He and the majority of his family attend church together on a weekly basis and find this a fulfilling aspect of their lives. Through the influence of his father, T. Arthur Mason became intrigued with politics. As a boy, he attended political events with his father and enjoyed the friendships that resulted as a byproduct of those political associations. As Mason grew older, he became convinced that the quote often attributed to Thomas Jefferson was true, "That government is best which governs least." Today, T. Arthur Mason enjoys time with his wife and children, an occasional hunt, and an increasingly active life on the political scene. This blog is the fulfillment of a dream to design a web site in the realm of politics and to advocate for the principles of Liberty and constitutionally limited government. On behalf of all those that contribute to The Minuteman, we hope you enjoy your time on the site and will share the message with others.