Tony, or your gut?
Because someone in ISIS, or ISIL, or just IS to its friends, found a photo of the Mall of America on Google, Minneapolis is again on the forefront of in the warron terra. So, naturally, Rep. Tony Cornish and his rag-tag vigilante militia want to go on patrol at the MOA, in spite of the fact that police and mall officials assure us that the mall is well protected. The mall showed off how well it was in a recent article in the Strib. It even has R.T. Rybak’s seal of approval.
— R.T. Rybak (@R_T_Rybak) February 22, 2015
(By the way, R.T., your hashtag isn’t going anywhere. Check your spelling.)
Not good enough! thunders Tony. Without my people, you’re all gonna die!
Plus, says Tony, you can’t stop us anyway, MOA, you big sissies.
To which the MOA says, Can too!
Tony replies, Can not!
In a dust up between the legion of lawyers who have opined that you can put up a sign on your commercial building and ban guns (not only at the MOA, but office buildings, medical buildings, hospitals, and shopping centers; I mean, you see them all over, right?), and Tony, who do you go with, Tony or your gut?
This is a decision that each of you has to make, my friends, but I recommend your gut. The answer is found, one way or another, in Subd. 17 of Minn. Stat. § 624.714 (2014). This is the 2004 statute (a do over from 2003) that provided for shall-issue handgun permits in the first place. Subdivision 17 provides:
Subd. 17. Posting; trespass.
(a) A person carrying a firearm on or about his or her person or clothes under a permit or otherwise who remains at a private establishment knowing that the operator of the establishment or its agent has made a reasonable request that firearms not be brought into the establishment may be ordered to leave the premises. A person who fails to leave when so requested is guilty of a petty misdemeanor. The fine for a first offense must not exceed $25. Notwithstanding section 609.531, a firearm carried in violation of this subdivision is not subject to forfeiture.
(b) As used in this subdivision, the terms in this paragraph have the meanings given.
(1) “Reasonable request” means a request made under the following circumstances:
(i) the requester has prominently posted a conspicuous sign at every entrance to the establishment containing the following language: “(INDICATE IDENTITY OF OPERATOR) BANS GUNS IN THESE PREMISES.”; or
(ii) the requester or the requester’s agent personally informs the person that guns are prohibited in the premises and demands compliance.
(2) “Prominently” means readily visible and within four feet laterally of the entrance with the bottom of the sign at a height of four to six feet above the floor.
(3) “Conspicuous” means lettering in black arial typeface at least 1-1/2 inches in height against a bright contrasting background that is at least 187 square inches in area.
(4) “Private establishment” means a building, structure, or portion thereof that is owned, leased, controlled, or operated by a nongovernmental entity for a nongovernmental purpose.
(c) The owner or operator of a private establishment may not prohibit the lawful carry or possession of firearms in a parking facility or parking area.
(d) This subdivision does not apply to private residences. The lawful possessor of a private residence may prohibit firearms, and provide notice thereof, in any lawful manner.
(e) A landlord may not restrict the lawful carry or possession of firearms by tenants or their guests.
(f) Notwithstanding any inconsistent provisions in section 609.605, this subdivision sets forth the exclusive criteria to notify a permit holder when otherwise lawful firearm possession is not allowed in a private establishment and sets forth the exclusive penalty for such activity.
(g) This subdivision does not apply to:
(1) an active licensed peace officer; or
(2) a security guard acting in the course and scope of employment.
Rep. Cornish seizes instantly on the language in (e). The mall is a landlord, the stores are tenants, and the customers are guests, right? Facile, but pretty obviously not right. If it was correct, the language in (a), (b), and (c) would not be necessary; (e) would entirely negate what has just come before.
There is an ambiguity here. The Legislature lavished a lot of words on (a), (b), and (c) in describing how a “private establishment” owner of a building that is, among other things, “leased,” can prohibit guns on the premises.
How do you solve the problem? Really this one is pretty easy, in my view.
One rule of statutory construction — more or less — is that courts assume, sometimes despite all the evidence to the contrary, that lawmakers really meant well, that they did not mean to write a law riven with inconsistencies, and the courts try to give effect what was intended.
Rep. Cornish’s construction is just silly. The Lege just wouldn’t spend all that time telling you how to do it and then turn around and tell you can’t.
Actually, (d) also provides a clue to the thinking going on. (d), and (e), too, are directed to residential, not commercial situations. There was just a change of subject without alerting the reader to that fact, at least in (e).
Sometimes the law reads like Hemingway.
Among the things a court doesn’t do in resolving an ambiguity is ring up a legislator and ask what s/he meant. If a law cannot be fair construed from its text, perhaps with reference to other laws contemporaneously written or on the same subject, courts will sometimes resort to legislative history: the collected written or audio or video proceedings of committees of the legislature and the legislature itself.
But certainly not what a single legislator thinks ten years later.
And that clearly isn’t even necessary here.
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