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Idaho Woman Prevails Over Unconstitutional Corps Firearm Ban

Dec 15, 2017 | by William Perry Pendley

DENVER, CO.  An Idaho woman who was barred from carrying a functional firearm for self-defense while using vast federal recreational lands today confirmed her right to do so when the U.S. Court of Appeals for the Ninth Circuit dismissed an appeal filed by federal lawyers.  Elizabeth E. Nesbitt of Nez Perce County is licensed to carry a concealed weapon, regularly carries a concealed weapon, and often recreates on lands managed by the U.S. Army Corps of Engineers.  Because an antiquated regulation by the Corps bans possession of functional firearms on Corps-managed lands, even while camped in tents, Mrs. Nesbitt was subject to criminal prosecution if she attempted to exercise both her constitutional rights and the rights granted to her by the State of Idaho.  Alan C. Baker, a firearms instructor and resident of Idaho’s Latah County, is a co-plaintiff in the suit, which was filed in August of 2013 in an Idaho federal district court.  In October of 2014, the district court ruled that the Corps’ ban on the possession of functional firearms violates the Second Amendment and permanently enjoined its enforcement in Idaho.  Although the Corps appealed to the U.S. Court of Appeals for the Ninth Circuit, just days before oral argument the Corps requested that the appeal be placed in the Ninth Circuit’s mediation program. 

On November 20, 2017, the Corps granted Mrs. Nesbitt and Mr. Baker and written permission to carry loaded firearms on Corps-managed lands in Idaho, Oregon, Washington, and Montana, subject to certain restrictions and local laws regarding the carrying of concealed weapons.  Based upon that written permission, the parties filed a joint motion to dismiss the appeal, which the Ninth Circuit granted.  Nevertheless, the permanent injunction issued by the Idaho federal district court regarding the Corps’ regulation remains in place while the agency considers amending the regulation.

“We are thrilled for our clients,” said William Perry Pendley of Mountain States Legal Foundation, which represents Mrs. Nesbitt and Mr. Baker.  “The Idaho court said it best, the regulation is ‘simply too broad’.  Drafted long before Heller, it violates the Supreme Court’s description of Second Amendment rights in that case.  [It] needs to be brought up to date.”

Ms. Nesbitt was issued an emergency license by the Nez Perce County Sheriff to carry a concealed handgun in 2012 due to threats and physical attacks against her.  She regularly carries a handgun for self-defense.  She uses Corps-administered public lands near the Snake River in to boat with friends, regularly walks the Corps-administered paths in the area with her dog and/or her family, and must cross Corps-administered public lands to reach Hells Gate State Park.

Mr. Baker is a NRA-Certified Home Firearm Safety, Personal Protection In The Home, Rifle, Pistol, and Shotgun Instructor, is a Utah Concealed Firearms Instructor, is licensed to carry a concealed handgun in Idaho, Utah, Oregon, and Arizona and regularly carries a handgun for self-defense.  A life-long outdoorsman, he regularly recreates on Corps-managed lands in Idaho, including at the Dworshak Dam and Reservoir on the North Fork Clearwater River.

Mountain States Legal Foundation, founded in 1977, is a nonprofit, public-interest legal foundation dedicated to individual liberty, the right to own and use property, limited and ethical government, and the free enterprise system.  Its offices are in suburban Denver, Colorado.

For more information:  Nesbitt v. U.S. Army Corps of Engineers

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