St. Louis Zoo Obtains Restraining Order against the Exercise of Constitutional Rights

Gun Watch ^ | 13 June, 2015 | Dean Weingarten

[marktwain]

The St. Louis Zoo has asked for, and Judge Joan Moriarty has issued, a temporary restraining order barring a Second Amendment activist from visiting the Zoo while armed.  From Fox2now.com:

ST. LOUIS (AP) – A judge is barring a gun-rights advocate from entering the St. Louis Zoo with a gun as he pledged to do this weekend.
St. Louis Circuit Judge Joan Moriarty issued a temporary restraining order against 56-year-old Jeffry Smith of Cincinnati. It’s in effect until a hearing June 22.
Smith planned to go armed to the St. Louis Zoo on Saturday afternoon to test the legality of the site’s firearms ban. Although Missouri law bars guns in gated areas of amusement parks, he questions whether the zoo fits that description as a public, taxpayer-supported place.

The Missouri law that deals with the issue appears to be 571.107 RSMo.  It does not "bar" guns in gated areas of amusement parks.  It allows proprietors of such facilities to ban the concealed carry of firearms there.  The law is very clear:

 Carrying of a concealed firearm in a location specified in subdivisions (1) to (17) of subsection 1 of this section by any individual who holds a concealed carry permit issued pursuant to sections 571.101 to 571.121, or a concealed carry endorsement issued prior to August 28, 2013, shall not be a criminal act but may subject the person to denial to the premises or removal from the premises.

It is clear that the open carry of firearms is not covered by this law.

In addition, the law itself may be subject to challenge under the recently passed Amendment 5, which strengthened the Missouri Constitutions protection of the right to keep and bear arms.   Here is the amendment that passed last year.  From komo.com:

"Section 23. That the right of every citizen to keep and bear arms, ammunition, and accessories typical to the normal function of such arms, in defense of his home, person, family and property, or when lawfully summoned in aid of the civil power, shall not be questioned. The rights guaranteed by this section shall be unalienable. Any restriction on these rights shall be subject to strict scrutiny and the state of Missouri shall be obligated to uphold these rights and shall under no circumstances decline to protect against their infringement. Nothing in this section shall be construed to prevent the general assembly from enacting general laws which limit the rights of convicted violent felons or those adjudicated by a court to be a danger to self or others as result of a mental disorder or mental infirmity.

An absolute ban on the carry of weapons in a publicly owned facility, without any physical barriers to entry with weapons, such as metal detectors or armed guards, would be an interesting test case for the constitutional amendment.

Jeffry Smith has repeatedly asked the Zoo administration to cite a statute that gives them the authority to ban weapons at the zoo.  The closest that they come is the above statute that grants certain entities the power to ban concealed firearms, by people with a concealed carry permit.

While the Zoo administration claims that the zoo is an "amusement park",  a child care center and associated with schools, all of those exceptions under the law tend to be a stretch, when you read the actual statute and definitions.  In any case, the Missouri law only applies to concealed weapons, not openly carried weapons.

The Zoo's response was to obtain this temporary restraining order:

The entire restraining order, in pdf format, is available here.  Here are the reasons the Zoo administration gives to justify the restraining order:

In the context of the Constitutional amendment, it is the Zoo administration that is "chilling" the exercise of the right to keep and bear arms on the public property that it administers.    Banning the legal carry of weapons in the Zoo clearly has a "chilling effect" on many.  The Zoo administration's personal prejudices against the carry of weapons seem unlikely to prevail in a court case.

Many see the request for a temporary restraining order as a desperate measure on the part of the Zoo administration.  The Zoo administrators even claim that a ruling against them will do "irreparable harm".

In a sense, that is true.  People who break the law are done irreparable harm by the rule of law and the criminal justice system every day.   Law breakers often resort to restraining orders to protect themselves from people who wish to see them investigated and the law enforced.

Here is the Facebook page for the event that is being organized to challenge the Zoo administrator's legal authority to ban the exercise of the right to bear arms at the Zoo.   Second Amendment attorneys might wish to contact Jeffry Smith.

 ©2015 by Dean Weingarten: Permission to share is granted when this notice is included.
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[marktwain]

Jeffry Smith is looking for a lawyer.

[Crazieman]

I’ll still carry. :)

[Arm_Bears]

So—Will taxpayer funding of the St. Louis zoo be withheld during the period that the restraining order is in effect?

[ClearCase_guy]

The right shall not be infringed.

Not by the feds.
Not by the state.
Not by the city.
Not by the business.

The right shall not be infringed.

[impimp]

Wrong - the right shall not be infringed by the Federal Government. Businesses can infringe all they want.

[ClearCase_guy]

Well, much of the Constitution has been re-interpreted over the years and there are many parts of the document which are now thought to "not say" the thing that they say.

Technically, your reading of it is correct. I think any court is likely to say that you are right and I am wrong.

But I will say this:
Government ought to protect We The People from fraud and coercion. Our God-given rights should be protected by the government. The constitution is a document which limits government so that government cannot become too powerful while it "protects" us -- because then the solution becomes the problem.
The First Amendment specifically limits Congress. It says it right there: "Congress shall make no law ..."
But that's followed directly by the Second Amendment: "The right shall not be infringed ...". Clearly this is a universal protection, not a limit on Congress or on any other particular body. It blocks ANYONE from infringing on our God-given right to self-defense. The power of government (the courts) should ensure that NO ONE infringes the right.

Now, having ranted on that point a bit, I will admit once again that any court is likely to say that you are right and I am wrong.

[impimp]

Well when it comes to the states being bound by the constitution, the courts initially thought I was right and you were wrong. Then the legal principle of “incorporation” (google it) kicked in over the past 100 or so years and things have swung so that you are right and I am wrong.

I am opposed to incorporation and I think that the states should be allowed to restrict any rights that the want to restrict.

[umgud]

I do seem to remember national stories about out of control crowds at the zoo more than once.

[marktwain]

The St. Louis Zoo is a political entity of the Government.

It is not a private business.

[bigbob]

Many “infringements” exist and are upheld in the law, as this will be.

[marktwain]

“Well when it comes to the states being bound by the constitution, the courts initially thought I was right and you were wrong. Then the legal principle of “incorporation” (google it) kicked in over the past 100 or so years and things have swung so that you are right and I am wrong.”

When it comes to the Second Amendment, the courts thought you were wrong before they thought you were right. Courts ruled that the Second Amendment restricted the States up until 1830 or so. Then the Supreme Court ruled that the Constitution did not restrict the States.

So you have the period between about 1830 to 1865 where you were correct. Then we get into the whole mess about the 14th Amendment, and the Courts refusal to enforce much of it for what... a hundred years?

[impimp]

An entity of the State government - not the federal government.

We discussed “incorporation” and other things related to the constitution and the states in this thread.

[Delta 21]

He’s gonna need one.

[Red in Blue PA]

The taxpayer funded zoo ain’t a business.

[Red in Blue PA]

An entity of the State government - not the federal government.

So states can infringe on the 2A?

Can states also quarter soldiers if they wish?

[ClearCase_guy]

I think that the states should be allowed to restrict any rights that the want to restrict

I agree with that. People would move to "the best" states and it would work itself out, I think. But, alas, it's all pretty much the same wherever you go nowadays.

[impimp]

I say yes and yes. The courts say no and no. Read about “incorporation”.

[CurlyDave]

"I think that the states should be allowed to restrict any rights that the want to restrict"

I agree with that. People would move to "the best" states and it would work itself out, I think. But, alas, it's all pretty much the same wherever you go nowadays.

This would lead to chaos and anarchy. There is a good reason that the constitution says each state must give "full faith and credit" to the laws of each other state. Doing it like you guys think would be like having 50 separate countries, loosely affiliated.

Of course, in some ways this is what we have right now.

Driving is not an enumerated right, but all states have Driver License reciprocity. RKBA is an enumerated right, but CCW reciprocity is optional, and many states (NY, NJ, CA for example) have no reciprocity, and even severely restrict their own citizens.

The problem with thinking that people would move to the "best" states is that states with larger economies, where the jobs are, have developed majorities who are anti-rights in many areas, not just RKBA. "Voting with your feet" has never been easy, and it requires great sacrifices in many cases.

One of the primary purposes of the constitution was to protect minority rights. A majority can always protect their own rights, but minorities are always endangered. Not just visually identifiable minorities, but those who are religious, philosophical, or life-style minorities. If we are one country, we need to have one set of rules for many things. I am a proponent of state's rights in many areas, but not when it impacts my enumerated rights.

[ClearCase_guy]

Allow me to go on record and say it clearly: I would like to have 50 separate countries, loosely affiliated.

[marktwain]

Sort of like the British Commenonwealth. What differentiates your preference from them?