Wrap your head around this one.

[mljdeckard]

Ok SO,

It's well-known that civilian carry permits are not valid on military posts. DOD policy forbids it. (Despite some RUMINT that some lawmakers have suggested passing a law to the contrary, such a thing is far from materializing.) In addition to which, every post I have visited in the last several years has a memo in place from the post commander which reiterates this. In my case, the state commander has a memo in place forbidding privately owned weapons in any national guard buildings. Some insist that this order applies only to members of the military, since national guard armories are actually state property, not marked or restricted in any way, therefore if a civilian was attending some event or other at a national guard armory, they could carry there.

Here's where it gets complicated. Our state commander has repealed his memo. He has stated that he trusts guard members to have guns in their vehicles. The gate guards at the state HQ have affirmed this, they say that they will not forbid entry to the parking lot if you have a gun in your vehicle. (This is actually compliant with state law, which forbids employers from forbidding weapons in vehicles in parking lots to workplaces.) Our state training post is also no longer off-limits under STATE law. HOWEVER, these posts are still a mix of Title Ten and Title 32 employees. Title Ten makes them federal. The National Guard receives money from the federal government and different federal agencies have facilities within the building with their own restrictions in place for prohibited items, over and above regular DOD or federal laws. Regardless of whether or not the state commander rescinds HIS policy, DOD policy is still clear. According to the most recent ALARACT (Army speak for an interim manual amendment) DOD policy still forbids carrying of weapons unless on official business, and requires use of force training, blag blah blah. If you are in uniform and at work, no guns.

(I do, on occasion, put mine on under the uniform AFTER work, like, if I have my wife come pick me up, I tell her to bring it and I wear it home, off-duty, off-post.)

We now have a growing tribe of guys who say that now that the state commander has rescinded his memo, it's game on. We can carry anywhere we want to. I have happened into a couple of conversations with guys and I tell them, "If something bad happens, you aren't covered. The .gov won't care what the state commander's policy is, you will be dealing with federal law." They say that our training post will be split up into federal and non-federal areas, and it doesn't matter as long as the gate guards don't search and forbid them.

I THINK, this is a disaster waiting to happen. There will be a push, someone will get confronted, say; "But the general says it's ok", and get charged anyway, or worse yet, there will be an actual event on the post where someone DOES pull their gun defensively, and reports it, and there will be a measuring contest between the .gov and the state, and the state will lose? Is there any good possible outcome here?

 

[leadcounsel]

Indeed a catastrophy waiting to ruin lives. Follow title 10 rules. I make no secret tbis is on of many reasons I left active duty. Silly policies, no trust, bad leadership.

 

[backbencher]

I would think a Title 32 soldier could carry while he was on Title 32 money. A Title 10 soldier could not carry on duty. Title 10 offices should put up "Unarmed victims here!" posters so massacring marauders know where to go.

ETA: Troops from Ft Carson were claiming last year that their concealed carry permits were recognized on base. Has that changed?

 

[mljdeckard]

I honestly don't know about Carson. My brother is stationed there, but he's currently in Qatar. I would think it's the same thing, even if a local commander withdraws their affirmation of DOD policy, the policy is still there.

 

[JShirley]

State law does not apply on fed property. That simple. It's why, for instance, military posts can sell alcohol on Sunday even when state law forbids it.

 

[backbencher]

Sure - so a Title 32 soldier can't carry into the PX. Not all National Guard posts are Fed property. Some of the buildings on post - the PX, the USPFO - are Fed buildings. Other buildings on post are state property - so a Title 32 could carry in them, a Title 10 soldier could not.

So it's not,"That simple".

 

[Apachedriver]

Keep in mind that concealed carry and taking a privately owned weapon onto a military post are 2 different things.

While concealed carry is illegal, a post commander will have a policy letter addressing the transporting of privately owned weapons(POW) onto or through a post.

i'll use the example of Ft Hood. Up until around 2005-06, the only way you could legally bring a POW on post was to have it registered thru PMO. If you lived in the barracks, you had to keep your POW stored in the unit arms room. If you lived off post, you could only bring the PMO registered POW through the gate going directly to the range for use. No stops; straight in and straight out.

Around 2006, that policy was amended. You still had to meet the above mentioned but you could also TRANSITION through post with an non-PMO registered firearm, without any stops, while carrying a POW in your vehicle. It had to be unloaded, unaccessible, and ammo separated from the firearm.

Of course that was working great until the radical nut-job went on his shooting spree.

The immediate solution to stopping that from happening again was to revert back to the previous policies.

Any way, my point is CCW and carrying a POW onto post are 2 different things and I'm betting its the same on a Guard or Reserve post. It sounds like there is a lot of clearing up that Commander needs to do if his troops all have varying understanding of his policy.

 

[mljdeckard]

Ok backbencher, are all buildings on a state post occupied and paid for solely by Title Ten OR Title 32 soldiers, and is any of the funding to keep those buildings shared between state and federal, and can you know these things by walking in?

 

[another pake]

...Keep in mind that concealed carry and taking a privately owned weapon onto a military post are 2 different things.

And, if I may, add another wrinkle. Carrying concealed a/your own, weapon while in military uniform is a whole different can of worms. A government issue piece is part of your uniform, is it not? A POW seems to fall outside of that idea, and clearly brings to mind a lot of questions, regardless of off duty or not..

Just sayin.

pake

 

[mljdeckard]

Pake, if you are carrying a weapon under the color of authority that comes with the uniformm ,the .gov only wants you to use the weapon THEY think is appropriate and serviceable. Uniform regulations really don't address concealed carry.

 

[backbencher]

mlj, I suppose it's up to the Post Commander to decide which buildings he wants the massacres to occur in, and mark those buildings "Victims only may enter" accordingly.

 

[mljdeckard]

But it isn't up to the post commander at all. That is what we are saying. There is a DoD policy regulating guns on post. A lower commander may not override a higher authority. He can ADD to it, and he can affirm it, but if the pentagon has a rule, a state or post commander cannot undo that rule.

 

[backbencher]

Depends if the post is on state or federal property. Camp Mabry, HQ of the TX NG, for example, is state property, not Federal. Federal rules apply @ the Navy Reserve Center, the USPFO, & the PX. The rest of the buildings are owned by the state. Fed money may have financed them, but they're state buildings. State rules apply.

 

[mljdeckard]

No. It's ALL DoD. All states agree to follow DoD regs in exchange for funding. All of the uniforms say U.S. on them.

 

[another pake]

mljdeckard, I think that we are saying the same thing...sort of. Except I didn't 't say it well. Additionally, I believe that if you were carrying a POW while in uniform, it would be frowned upon, whether off duty or not. Not sure how they would know but you get my drift.

 

[backbencher]

Camp Mabry is owned by the State of Texas, and is guarded by State employees. Texas sets the rules on Camp Mabry. If your post is on a Federal installation, then the Feds set the rules.

 

[mljdeckard]

Does camp Mabry have troops on it wearing uniforms that say "U.S. Army"?

 

[mljdeckard]

I have had an off-the-record conversation with my chain of command. They certainly would not prefer that I get killed because I wasn't armed at a time I could have been. My PL is a cop, my CO is an FFL. They are very much on my side. I frequently have my wife pick me up from work, off-property, and I put my gun on under the uniform for the drive home.

 

[backbencher]

mlj, are you familiar w/ the fact that the National Guard Bureau can ask states to do things, can fund states to do things, but can't actually make states do things unless they call the troops up to Title 10 & run the show themselves? The Pentagon might like there to be no non-federal guns on National Guard bases, but I'm not seeing how they can make it so. The TAGs are responsible to their governors, not the Pentagon until someone cuts Title 10 orders.

 

[mljdeckard]

But the state agrees to follow ALL DoD policies in exchange for funding, equipment, and training.

 

[backbencher]

We agree to cash the checks ; ) Do your orders say Title 10 or Title 32? Can you be court-martialed under the UCMJ for something you did today, or only under your State's Code of Military Justice? If you're under state orders, you do what your TAG & governor tell you to do. If you're on Title 10, then you do what the Pentagon wants.

 

[mljdeckard]

I have done plenty of both. (Currently Title 32.) I will reiterate, because you apparently ignored it. A local commander can add to or affirm DoD policies. They can't ignore them. They have to follow all of big army's rules. They can ADD to them if they want to. If the local commander doesn't affirm the DoD policy for weapons on-post, it doesn't change big army's policy.

 

[leadcounsel]

Uniform Code of Military Justice, Article 134, makes carry of a concealed weapon illegal:

( 1 ) That the accused carried a weapon
concealed on or about the accused’s person;
(2) That the carrying was unlawful;
(3) That the weapon was a dangerous weapon;
and
(4) That, under the circumstances, the conduct of
the accused was to the prejudice of good order and
discipline in the armed forces or was of a nature to
bring discredit upon the armed forces.

Fed and state property are different jurisdictions. Title 10, Title 32 both subject to the UCMJ.... layers of various base restrictions, orders, policies etc. on federal bases prohibit concealed carry. And always go with the most restrictive. As the OP pointed out, subordinate commanders can be more restrictive, not less.

I suppose you could raise the question about lawfulness... but the Base General (along with subordinate commanders) almost certainly has a base policy and/or regulations restriction on any personal concealed carry. So you have layers of orders from the top down, and these change with the whims of commanders and subordinate commanders, and can be more restrictive than the UCMJ. And when you roll onto base, IME, there are ample signs that say "no concealed carry..." and "no private weapons..." etc.

You'd want to get something in writing from the Staff Judge Advocate (perhaps administrative law) that guarantees carry is lawful, and I suspect that would trigger them realizing that perhaps there is a conflict and they would work to resolve that in favor of outlawing more clearly concealed carry.

In my experience, the military will not condone concealed carry. It removes 1 layer of power from the military and gives one level of power to the individual, and that is something the military never does. I am disgusted even by Generals like Odinero who refuse to see that concealed carry would make bases more safe... Heck, consider that even in combat zones, generally, on base service members were prohibited from 1) a loaded weapon and 2) concealed carry. And that's in a combat zone!

As a closing consideration, please share this with those naïve guys wanting to carry, from a former military prosecutor and defense attorney, and private practice military defense attorney:

Let's assume that a Title 32 person carried concealed and was actually within some narrow exception and legally correct. In my experience, few Staff Judge Advocates would let him off that easily. He'd still run a very fair chance of facing either Court Martial, or Article 15, and/or Administrative Separation. Sure, he would get his 'day in court,' but a fun and inexpensive experience that would NOT be... defenses may include challenging the 'lawfulness' of the order, or challenging the 'Prejudicial to Good Order' aspect... but good luck with those. Once you're in the machine of criminal defense, even if you're in the right, you still run a very good chance of losing. Military Judges and Juries (called Panels in the Military) and Commanders are all law-following enforcers of military rules and regulations... (and statistically at least 1/2 are anti-gun). It only takes 2/3rds of Panel members, or 1 Judge, or 1 Commander (at an Article 15), to convict... so good luck getting an acquittal.

Here's an abbreviation of ranges of criminal and adverse administrative actions:
1) General Court Martial - felony level criminal charges. Federal conviction. Possibly year(s) in military prison. Loss of all rank and pay. Bad Conduct or Dishonorable Discharge is possible. 2/3rds panel vote to convict.
2) Special Court Martial - misdemeanor level criminal charges. Federal conviction. Max 1 year in prison, Loss of rank, 2/3rds pay, and Bad Conduct Discharge. 2/3rds panel vote to convict.
3) Summary Court Martial or Article 15. Essentially 1 officer reviews the facts and decides guilty or not guilty. Could lose pay, rank, have restrictions, etc.
4) Administrative Involuntary Separation. A service member could face involuntary separation with an Honorable, General, or Other Than Honorable Discharge for misconduct. This requires some paperwork. He is only entitled to a hearing if he has 6+ years of service or the recommended discharge is OTH. A misconduct discharge, and/or less than Hon discharge, could negatively impact him in the future (benefits, jobs, re-enlistment, etc.).

On top of that, the military can - at it's whim - take many administrative actions including Relief For Cause NCOER/OER, General Officer Memorandum of Reprimand, suspend or revocation of clearance, bar from re-enlistment, administrative reduction in rank, and a host of other employer-employee actions. Many of these effectively end the career of a military member.

Any notion that the military won't prosecute is misguided. Doesn't matter if you have a good reputation, have deployed several times, done a lot of amazing things, are high speed, etc. I've seen countless awesome Soldiers (including very well-respected, high ranking NCOs and Officers) be run-over by the Military Justice system for small matters... As I have often said, Loyalty in the Military is a One-Way Street. They quickly forget all of a persons' sacrifices when the allegations are leveled.

 

[backbencher]

I think some of the confusion here is the TAG is subordinate to the governor, not the Pentagon. DoD has a policy for Federal installations. If the installation is not a federal installation, but a state one, then state law applies.

 

[leadcounsel]

I think some of the confusion here is the TAG is subordinate to the governor, not the Pentagon. DoD has a policy for Federal installations. If the installation is not a federal installation, but a state one, then state law applies.

That's an interesting angle... it's possible to argue lack of personal jurisdiction or subject matter jurisdiction... let's look at the Manual for Courts Martial:

Rule of Courts Martial 202-204 , and Section 802, states:

(a) In general. Courts-martial may try any person
when authorized to do so under the code.
(b) Offenses under the law of war. Nothing in this
rule limits the power of general courts-martial to try
persons under the law of war 201(f)(1)(B).

Notes: (1) Authority under the code. Article 2 lists classes of persons
who are subject to the code. These include active duty
personnel (Article 2(a)(1)); cadets, aviation cadets, and midshipmen
(Article 2(a)(2)); certain retired personnel (Article 2(a)(4)
and (5)); members of Reserve components not on active duty
under some circumstances (Article 2(a)(3) and (6)); persons in the
custody of the armed forces serving a sentence imposed by courtmartial
(Article 2(a)(7)); and, under some circumstances, specified
categories of civilians (Article 2(a)(8), (9), (10), (11), and
(12); see subsection (3) and (4) of this discussion). In addition,
certain persons whose status as members of the armed forces or
as persons otherwise subject to the code apparently has ended
may, nevertheless, be amendable to trial by court-martial. See
Article 3, 4, and 73. A person need not be subject to the code to
be subject to trial by court-martial under Articles 83, 104, or 106.
See also Article 48 and R.C.M. 809 concerning who may be
subject to the contempt powers of a court-martial.
(2) Active duty personnel. Court-martial jurisdiction is most
commonly exercised over active duty personnel. In general, a
person becomes subject to court-martial jurisdiction upon enlistment
in or induction into the armed forces, acceptance of a
commission, or entry onto active duty pursuant to orders. Courtmartial
jurisdiction over active duty personnel ordinarily ends on
delivery of a discharge certificate or its equivalent to the person
concerned issued pursuant to competent orders. Orders transferring
a person to the inactive reserve are the equivalent of a
discharge certificate for purposes of jurisdiction.These are several important qualifications and exceptions to
these general guidelines (A) Inception of court-martial jurisdiction over active
duty personnel.
(i) Enlistment. “The voluntary enlistment of any
person who has the capacity to understand the significance of
enlisting in the armed forces shall be valid for purposes of jurisdiction
under [Article 2(a)] and a change of status from civilian to
member of the armed forces shall be effective upon taking the
oath of enlistment.” Article 2(b). A person who is, at the time of
enlistment, insane, intoxicated, or under the age of 17 does not
have the capacity to enlist by law. No court-martial jurisdiction
over such a person may exist as long as the incapacity continues.
If the incapacity ceases to exist, a “constructive enlistment” may result under Article 2(c). See discussion of “constructive enlistment”
below. Similarly, if the enlistment was involuntary, courtmartial
jurisdiction will exist only when the coercion is removed
and a “constructive enlistment” under Article 2(c) is established....
...(iii) Call to active duty. A member of a reserve
component may be called or ordered to active duty for a variety
of reasons, including training, service in time of war or national
emergency, discipline, or as a result of failure to participate satisfactorily
in unit activities.When a person is ordered to active duty for failure to satisfactorily
participate in unit activities, the order must substantially
comply with procedures prescribed by regulations, to the extent
due process requires, for court-martial jurisdiction to exist. Generally,
the person must be given notice of the activation and the
reasons therefor, and an opportunity to object to the activation. A
person waives the right to contest involuntary activation by failure to exercise this right within a reasonable time after notice of
the right to do so.
(B) Termination of jurisdiction over active duty personnel.
As indicated above, the delivery of a valid discharge certificate
or its equivalent ordinarily serves to terminate court-martial
jurisdiction....

...(5) Members of a Reserve Component. Members of a
reserve component in federal service on active duty, as well as
those in federal service on inactive-duty training, are subject to
the code. Moreover, members of a reserve component are amenable
to the jurisdiction of courts-martial notwithstanding the termination
of a period of such duty. See R.C.M. 204.

RCM 204: Jurisdiction over certain reserve
component personnel
( a ) Service Regulations. The Secretary concerned
shall prescribe regulations setting forth rules and
procedures for the exercise of court-martial jurisdiction
and nonjudicial punishment authority over reserve
component personnel under Article 2(a)(3) and
2(d), subject to the limitations of this Manual and
the UCMJ.

Such regulations should describe procedures for ordering a reservist
to active duty for disciplinary action, for the preferral,
investigation, forwarding, and referral of charges, designation of
convening authorites or commanders authorized to conduct
nonjudicial punishment proceedings, and for other appropriate
purposes.
See definitions in R.C.M. 103 (Discussion). See paragraph 5e
and f, Part V, concerning limitations on nonjudicial punishments
imposed on reservists while on inactive-duty training.
Members of the Army National Guard and the Air National
Guard are subject to Federal court-martial jurisdiction only when
the offense concerned is committed while the member is in Federal
service.
(b) Courts-Martial
(1) General and special court-martial proceedings.
A member of a reserve component must be on
active duty prior to arraignment at a general or special
court-martial. A member ordered to active duty
pursuant to Article 2(d) may be retained on active
duty to serve any adjudged confinement or other
restriction on liberty if the order to active duty was
a p p r o v e d i n a c c o r d a n c e w i t h A r t i c l e 2 ( d ) ( 5 ) , b u t
such member may not be retained on active duty
pursuant to Article 2(d) after service of the confinement
or other restriction on liberty. All punishments
remaining unserved at the time the member is released
from active duty may be carried over to subsequent
periods of inactive-duty training or active
duty.

Section 802 Art. 2. Persons subject to this chapter (aka the UCMJ)
(a) The following persons are subject to this chapter:
(1) Members of a regular component of the armed forces,
including those awaiting discharge after expiration of their terms
of enlistment; volunteers from the time of their muster or acceptance
into the armed forces; inductees from the time of their actual
induction into the armed forces; and other persons lawfully called
or ordered into, or to duty in or for training in, the armed forces,
from the dates when they are required by the terms of the call or
order to obey it.
(2) Cadets, aviation cadets, and midshipmen.
(3) Members of a reserve component while on inactive-duty
training, but in the case of members of the Army National Guard
of the United States or the Air National Guard of the United
States only when in Federal service.
(4) Retired members of a regular component of the armed
forces who are entitled to pay.
(5) Retired members of a reserve component who are receiving
hospitalization from an armed force.
(6) Members of the Fleet Reserve and Fleet Marine Corps
Reserve.
(7) Persons in custody of the armed forces serving a sentence
imposed by a court-martial.
(8) Members of the National Oceanic and Atmospheric Administration,
Public Health Service, and other organizations, when
assigned to and serving with the armed forces.
(9) Prisoners of war in custody of the armed forces.
(10) In time of declared war or contingency operation, persons
serving with or accompanying an armed force in the field.
(11) Subject to any treaty or agreement to which the United
States is or may be a party or to any accepted rule of international
law, persons serving with, employed by, or accompanying the
armed forces outside the United States and outside the Commonwealth
of Puerto Rico, Guam, and the Virgin Islands.
(12) Subject to any treaty or agreement to which the United
States is or may be a party or to any accepted rule of international
law, persons within an area leased by or otherwise reserved or
acquired for the use of the United States which is under the
c o n t r o l o f t h e S e c r e t a r y c o n c e r n e d a n d w h i c h i s o u t s i d e t h e
United States and outside the Canal Zone, the Commonwealth of
Puerto Rico, Guam, and the Virgin Islands.
(b) The voluntary enlistment of any person who has the capacity
to understand the significance of enlisting in the armed forces
shall be valid for purposes of jurisdiction under subsection (a) and
a change of status from civilian to member of the armed forces
shall be effective upon the taking of the oath of enlistment.
(c) Notwithstanding any other provision of law, a person serving
with an armed force who—
(1) submitted voluntarily to military authority;
(2) met the mental competence and minimum age qualifications
of sections 504 and 505 of this title at the time of voluntary
submission to military authority;
(3) received military pay or allowances; and
(4) performed military duties;
is subject to this chapter until such person’s active service has
been terminated in accordance with law or regulations promulgated
by the Secretary concerned.
(d)(1) A member of a reserve component who is not on active
duty and who is made the subject of proceedings under section 81
(article 15) or section 830 (article 30) with respect to an offense
against this chapter may be ordered to active duty involuntarily
for the purpose of
(A) investigation under section 832 of this title (article 32);
(B) trial by court-martial; or
(C) nonjudicial punishment under section 815 of this title
(article 15).
(2) A member of a reserve component may not be ordered to
active duty under paragraph (1) except with respect to an offense
committed while the member was
(A) on active duty; or
(B) on inactive-duty training, but in the case of members
of the Army National Guard of the United States or the Air
National Guard of the United States only when in Federal service.
(3) Authority to order a member to active duty under paragraph
( 1 ) s h a l l b e e x e r c i s e d u n d e r r e g u l a t i o n s p r e s c r i b e d b y t h e
President.
(4) A member may be ordered to active duty under paragraph
(1) only by a person empowered to convene general courts-martial
in a regular component of the armed forces.
(5) A member ordered to active duty under paragraph (1), unless
the order to active duty was approved by the Secretary
concerned, may not
(A) be sentenced to confinement; or
(B) be required to serve a punishment consisting of any
restriction on liberty during a period other than a period of inactive-
duty training or active duty (other than active duty ordered
under paragraph (l)).
(e) The provisions of this section are subject to section 876(d)(2)
of this title (article 76b(d)(2).

So, the Rules do appear to maintain jurisdiction over Reservists, but not National Guardsmen... and would allow a loophole for a National Guardsman to escape prosecution under the UCMJ under a theory of lack of personal and subject matter jurisdiction while not under title 10 and while not on Federal property...

That is an interesting point, and one I'm going to continue to investigate... More to follow.