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Michigan Gun Owners, Inc. v. Ann Arbor Public Schools

Supreme Court of Michigan

July 27, 2018

MICHIGAN GUN OWNERS, INC. and ULYSSES WONG, Plaintiffs-Appellants,
v.
ANN ARBOR PUBLIC SCHOOLS and JEANICE K. SWIFT, Defendants-Appellees. MICHIGAN OPEN CARRY INC. and KENNETH HERMAN, Plaintiffs-Appellants,
v.
CLIO AREA SCHOOL DISTRICT, FLETCHER SPEARS III, and KATRINA MITCHELL, Defendants-Appellees.

          Argued on application for leave to appeal April 11, 2018.

          Chief Justice: Stephen J. Markman Justices: Brian K. Zahra Bridget M. McCormack David F. Viviano Richard H. Bernstein Kurtis T. Wilder Elizabeth T. Clement

         SYLLABUS

         In Docket No. 155196, Michigan Gun Owners, Inc., and Ulysses Wong brought an action in the Washtenaw Circuit Court against the Ann Arbor Public Schools (AAPS), challenging three AAPS policies that banned the possession of firearms in schools and at school-sponsored events. Plaintiffs asserted that AAPS was a local unit of government under MCL 123.1101 and that, as such, they were preempted by state law from regulating the possession of firearms. The parties filed cross-motions for summary disposition. The court, Carol A. Kuhnke, J., granted AAPS's motion for summary disposition and dismissed plaintiffs' complaint with prejudice, ruling that AAPS was not a local unit of government under MCL 123.1101 and that state law did not preempt AAPS's policies under the four-factor analysis set forth in People v Llewellyn, 401 Mich. 314, 323-324 (1977). The Court of Appeals, K. F. Kelly, P.J., and Gleicher and Shapiro, JJ., affirmed, 318 Mich.App. 338 (2016), and plaintiffs sought leave to appeal. The Supreme Court ordered and heard oral argument on whether to grant the application or take other peremptory action. 501 Mich. 941 (2017).

         In Docket No. 155204, Michigan Open Carry Inc. and Kenneth Herman brought an action in the Genesee Circuit Court against the Clio Area School District (CASD), Fletcher Spears III, and Katrina Mitchell, alleging that defendants had improperly denied Herman access to his child's elementary school while he was openly carrying a pistol under a CASD policy that banned the possession of firearms in CASD schools and at public events. The court, Archie L. Hayman, J., granted summary disposition and entered a declaratory judgment in plaintiffs' favor, ruling that, under Capital Area Dist Library v Mich. Open Carry, Inc, 298 Mich.App. 220 (2012) (CADL), CASD was a quasi-municipal corporation that was preempted from attempting to regulate in the field of firearm regulation. The Court of Appeals, K. F. Kelly, P.J., and Gleicher and Shapiro, JJ., reversed, 318 Mich.App. 356 (2016), and defendants sought leave to appeal. The Supreme Court ordered and heard oral argument on whether to grant the application or take other peremptory action. 501 Mich. 941 (2017).

         In an opinion by Justice McCormack, joined by Justices Viviano, Bernstein, and Clement, the Supreme Court, in lieu of granting leave to appeal, held:

         The Legislature has the authority to preempt school districts from adopting policies like the ones at issue that regulate firearms on school property; however, not only has the Legislature not done so, it has expressed its intent not to preempt such regulation. Because an unambiguous statute showed a legislative intent not to occupy the field of firearms regulation, the districts' policies were not impliedly field-preempted. And given the procedural history of the case and the arguments presented to the Court, it was unnecessary to determine whether the policies were conflict-preempted. The Court of Appeals judgments were affirmed. To the extent that Mich Coalition for Responsible Gun Owners v City of Ferndale, 256 Mich.App. 401 (2003), cited MCL 123.1102 as supporting the proposition that state law completely occupied the field of firearms regulation, it was overruled.

         1. Under Llewellyn, a court begins the preemption analysis by determining whether state law expressly provides that the state's authority to regulate in a specified area of the law is to be exclusive. It was undisputed in these cases that state law does not expressly preempt school districts' authority to regulate guns. While MCL 123.1102 prohibits a local unit of government from regulating firearms except as otherwise provided by federal law or a law of this state, MCL 123.1101(b) then defines "local unit of government" to mean "a city, village, township, or county." In other words, while MCL 123.1102 expressly preempts regulation of firearms by a city, village, township, or county; it does not apply to school districts.

         2. In determining under Llewellyn whether the Legislature has impliedly occupied the field and thereby precluded local regulation in a certain area, courts are to consider legislative history, the pervasiveness of a state regulatory scheme, and whether the nature of the regulated subject matter demands exclusive state regulation to achieve the uniformity necessary to serve the state's purpose or interest. The Court of Appeals analyzed these factors and determined that the Legislature had not impliedly occupied the field of firearms regulation. However, this analysis of the Llewellyn factors to consider field preemption was unnecessary in light of the fact that an unambiguous statute established legislative intent to regulate the subject matter only partially. Under the doctrine expressio unius est exclusio alterius-the expression of one thing suggests the exclusion of all others-the enactment of an express preemption statute limited to specific local units of government implies that entities not included are not preempted. In this case, because MCL 123.1102 and MCL 123.1101 exclude school districts from an otherwise precise list of local units of government prohibited from regulating firearms, the districts' policies are not field-preempted. To the extent that Mich Coalition for Responsible Gun Owners, 256 Mich.App. 401, cited MCL 123.1102 as supporting the proposition that state law completely occupied the field of firearms regulation, it was overruled.

         3. Plaintiffs' argument that the districts' policies conflict with various statutes- particularly MCL 28.425o and MCL 750.237a, which they read as implying a state law right to openly carry firearms on school property-was abandoned because plaintiffs failed to assert it in their applications for leave to appeal and also made clear at oral argument that they were not advancing a conflict-preemption argument.

         Court of Appeals judgments affirmed.

          Justice Viviano, joined by Justice Bernstein, concurring, wrote separately to explain his reasons for disagreeing with the dissenting opinion. He noted that the dissent raised only a narrow issue, specifically, whether the school policies directly conflicted with state law and were therefore preempted by it. He disagreed with the dissent's position that MCL 750.237a(5)(c) and MCL 28.425o(1)(a), when read together, give concealed pistol license (CPL) holders the right to openly carry a firearm on school property, thereby permitting what the policies prohibit. He stated that MCL 28.421 et seq. only addresses the open carrying of a pistol in limited circumstances not applicable in this case, MCL 28.425c(3)(b), and that MCL 750.237a also does not provide an express right to openly carry a firearm on school property. He further stated that even if these statutes could be read as expressly exempting the open carrying of firearms by CPL holders from the criminal prohibition in MCL 750.237a, the Court had previously rejected the dissent's theory that that which the Legislature has not prohibited it has impliedly permitted. Instead, the Court had established that in order for a state law to conflict with and preempt a local regulation, the state law must expressly permit something the local regulation prohibits. Justice Viviano concluded that because no state statute could be read to expressly permit the open carrying of firearms on school property, the school policies at issue did not conflict with any state law and were therefore not preempted.

          Justice Clement, concurring, wrote separately to note that, despite the number of opinions in these cases, no member of the Court expressed any disagreement as to the holding that the field of firearms regulation was not preempted either expressly, by MCL 123.1102, or impliedly under Llewellyn. She stated that what divided the Court was the Chief Justice's assertion that it was necessary to perform a threshold inquiry of whether the school districts had the authority to adopt the policies in the first place and his conclusion that they did not have this authority. Justice Clement expressed no opinion on the merits of this argument, but rather agreed with the majority that the Court should decline to advance this argument for the parties when the parties not only did not make it for themselves but instead ceded the issue during oral argument, thereby abandoning it. She stated that declining to reach this argument was consistent with the Court's concern for judicial modesty and the admonition that appellate courts do not sit as self-directed boards of legal inquiry and research, and she noted that declining to reach the argument in these cases did nothing to prejudice the Court's ability to take it up in a future case in which it was properly presented.

          Justice Wilder, joined by Justice Zahra, concurred with the majority opinion insofar as it concluded that the Legislature has not occupied the entire field of firearm regulation for preemption purposes, but he respectfully dissented from the majority's decision not to reach the issue of conflict preemption, noting that the decision not to address an abandoned issue was a prudential matter rather than an inflexible rule and that the equities favored waiving the rules regarding issue preservation and abandonment under these circumstances. Justice Wilder would have granted the application in this case and directed the parties to brief the issue of conflict preemption in light of the fact that the issue presented a matter of pure statutory interpretation, the issue was likely to be relitigated, and the parties appeared motivated to brief and argue the issue of conflict preemption in greater depth.

          Chief Justice Markman, dissenting, stated that while he did not necessarily disagree with the majority's conclusions regarding express preemption and field preemption, he disagreed with the majority's failure to address the threshold inquiry of whether the school districts had the authority to adopt these policies in the first place. He stated that although MCL 380.11a(3) gives school districts the authority to enact policies that provide for the safety and welfare of pupils while at school "except as otherwise provided by law," state law does "otherwise provide," by generally prohibiting the possession of firearms on school property in MCL 750.237a(4) but then by expressly exempting individuals licensed by this state to carry a concealed pistol from this prohibition in MCL 750.237a(5), thereby permitting licensed individuals to possess firearms on school property. He concluded that because the school districts have attempted to prohibit what state law permits, the school districts' policies are void. He stated that when there is an enactment of the Legislature that provides that a person "may" do something and a subordinate public body provides that he or she "may not" do that same thing, there is a textual, a logical, a legal, and a practical conflict, and the former provision of law prevails. Chief Justice Markman would have reversed the judgment of the Court of Appeals in both cases.

         BEFORE THE ENTIRE BENCH

          OPINION

          MCCORMACK, J.

         The defendants, the Ann Arbor and Clio school districts, each have a policy banning firearms on school property. The plaintiffs, advocacy organizations supporting gun ownership and certain parents of children who attend school in the defendant districts, believe state law preempts these policies by implication. While the Legislature plainly can preempt school districts from adopting policies like the ones at issue if it chooses to, it has not done so here: not only has our Legislature not preempted school districts' regulation of guns by implication, it has expressed its intent not to preempt such regulation. We therefore affirm the Court of Appeals.

         I. FACTS AND PROCEDURAL HISTORY

         The defendant school districts adopted policies prohibiting firearms on school property. Each policy contains an exception for individuals with a concealed pistol license (CPL). To be clear, in practice this means CPL holders can carry a concealed weapon on school property under certain limited conditions, but they cannot openly carry one.[1]

         The plaintiffs filed these lawsuits, seeking a determination that state law preempts by implication the school districts' policies limiting firearms on school grounds. Each district moved for summary disposition. The plaintiffs filed cross-motions for summary disposition or for declaratory relief.

         In the Ann Arbor case, the Washtenaw Circuit Court granted the defendants' motion for summary disposition and denied the plaintiffs' motion for summary disposition. In the Clio case, the Genesee Circuit Court denied the defendants' motion for summary disposition and granted declaratory relief to the plaintiffs. In published opinions issued the same day and by the same panel, the Court of Appeals affirmed the Washtenaw Circuit Court and reversed the Genesee Circuit Court. The Court of Appeals held that the districts' policies are not field-preempted, applying the analysis from our decision in People v Llewellyn, 401 Mich. 314; 257 N.W.2d 902 (1977), and that the policies are not conflict-preempted because they do not conflict with any statute.

         The plaintiffs appealed, arguing that the school districts are prohibited from adopting policies banning firearms (beyond those permitted by the concealed-weapon licensing exception) because the state has occupied the field of firearms regulation and that the Court of Appeals' decisions in these cases conflict with its opinion in Capital Area Dist Library v Mich. Open Carry, Inc, 298 Mich.App. 220; 826 N.W.2d 736 (2012) (CADL). We directed oral argument on the application in each case and ordered that they be argued and submitted together and directed the parties to brief:

(1) whether, in light of MCL 123.1102, it is necessary to consider the factors set forth in People v Llewellyn, 401 Mich. 314 (1977), in order to determine whether the school district's policies are preempted; (2) if so, whether the Court of Appeals properly analyzed the Llewellyn factors; and (3) whether the Court of Appeals correctly held that the school district's policies are not preempted. [501 Mich. 941 (2017).]

         II. ANALYSIS

         Whether the state has preempted a local regulation, which the state can do expressly or by implication-and in that latter case either because the local regulation directly conflicts with state law or because the state has occupied the entire field of regulation in a certain area-is a question of statutory interpretation that we review de novo. Detroit v Ambassador Bridge Co, 481 Mich. 29, 35; 748 N.W.2d 221 (2008); Ter Beek v City of Wyoming, 495 Mich. 1, 8; 846 N.W.2d 531 (2014). That means that we review it independently, with no required deference to the trial court. Millar v Constr Code Auth, 501 Mich. 233, 237; 912 N.W.2d 521 (2018).

         The plaintiffs argue that the school districts' policies are preempted by implication. For good reason: There is no indication that any statute preempts the policies expressly. Accordingly, the sole argument in the plaintiffs' applications for leave to appeal in this Court, and their primary argument in their supplemental briefing, is that the districts' policies are field-preempted under our decision in Llewellyn. Field preemption applies if "the state statutory scheme pre-empts the ordinance by occupying the field of regulation which the municipality seeks to enter, to the exclusion of the ordinance, even where there is no direct conflict between the two schemes of regulation." Llewellyn, 401 Mich. at 322. Conflict preemption, by contrast, applies instead if "the ordinance is in direct conflict with the state statutory scheme," id., such that conformity with both is not possible. The plaintiffs did not advance a conflict-preemption argument in their applications or at oral argument.

         A. EXPRESS PREEMPTION

         Under Llewellyn, a court begins the preemption analysis by determining whether state law "expressly provides that the state's authority to regulate in a specified area of the law is to be exclusive . . . ." Id. at 323. As noted, there is no dispute that state law does not expressly preempt school districts' authority to regulate guns. Under MCL 123.1102, "[a] local unit of government shall not . . . enact or enforce any ordinance or regulation pertaining to, or regulate in any other manner the ownership, registration, purchase, sale, transfer, transportation, or possession of pistols [or] other firearms . . . except as otherwise provided by federal law or a law of this state." MCL 123.1101(b) then defines "local unit of government" in the act to mean "a city, village, township, or county." In other words, while MCL 123.1102 expressly preempts regulation of firearms by a city, village, township, or county, it does not apply to school districts, which are left out of the Legislature's list.[2]

         B. IMPLIED PREEMPTION

         1. FIELD PREEMPTION

         The schools districts' policies are also not impliedly field-preempted. Courts are to consider these factors in determining whether the Legislature has impliedly occupied the field so as to preclude local regulation in a certain area:

[P]reemption of a field of regulation may be implied upon an examination of legislative history. Walsh v River Rouge, 385 Mich. 623; 189 N.W.2d 318 (1971).
[T]he pervasiveness of the state regulatory scheme may support a finding of preemption. Grand Haven v Grocer's Cooperative Dairy Co, 330 Mich. 694, 702; 48 N.W.2d 362 (1951); In re Lane, 58 Cal.2d 99; 22 Cal.Rptr. 857; 372 P.2d 897 (1962); Montgomery County Council v Montgomery Ass'n, Inc, 274 Md. 52; 325 A.2d 112, 333 A.2d 596 (1975). While the pervasiveness of the state regulatory scheme is not generally sufficient by itself to infer pre-emption, it is a factor which should be considered as evidence of pre-emption.
[T]he nature of the regulated subject matter may demand exclusive state regulation to achieve the uniformity necessary to serve the state's purpose or interest. [Llewellyn, 401 Mich. at 323-324.]

         The Court of Appeals analyzed these factors and determined that the policies were not field-preempted. But the school districts believe this step isn't needed. They contend that we should consider the exclusion of school districts from MCL 123.1101(b) as a definitive expression of the Legislature's intent not to occupy the field. They cite Judge GLEICHER's partial dissenting opinion in CADL, 298 Mich.App. at 241-251 (advocating this approach). We agree.

         In Llewellyn, no statute expressly stated the Legislature's intent to preempt local obscenity regulation, but we found that the state's comprehensive coverage of the field impliedly revealed the Legislature's intent to occupy the field. Llewellyn therefore addressed a different question than the one presented here. Here, an unambiguous statute shows a legislative intent not to occupy the field.

         Requiring courts to turn to the Llewellyn factors to consider field preemption even when an unambiguous statute establishes legislative intent to regulate the subject matter only partially would be an internally contradictory exercise and contrary to this Court's general rules of statutory interpretation.[3] The Legislature's partial list of local units of government that may not regulate firearms answers, definitively, the field-preemption question. "Where the language of the statute is unambiguous, the plain meaning reflects the Legislature's intent and this Court applies the statute as written. . . . Only where the statutory language is ambiguous may a court properly go beyond the words of the statute to determine legislative intent." People v Borchard-Ruhland, 460 Mich. 278, 284; 597 N.W.2d 1 (1999).[4] These principles apply with equal force to preemption questions. Morales v Trans World Airlines, Inc, 504 U.S. 374, 383; 112 S.Ct. 2031; 119 L.Ed.2d 157 (1992) ("The question [of preemption], at bottom, is one of statutory intent, and we accordingly' "begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose."' ") (citations omitted).

         A reasonable application of the expressio unius est exclusio alterius doctrine gets to the same answer:" 'the expression of one thing suggests the exclusion of all others.'" People v Wilson, 500 Mich. 521, 526; 902 N.W.2d 378 (2017). Enactment of an express-preemption statute limited to specific local units of government implies that entities not included are not preempted. Cipollone v Liggett Group, Inc, 505 U.S. 504, 517; 112 S.Ct. 2608; 120 L.Ed.2d 407 (1992) ("Congress' enactment of a provision defining the preemptive reach of a statute implies that matters beyond that reach are not pre-empted."); id. at 547 (Scalia, J., concurring in part and dissenting in part) ("Once there is an express pre-emption provision, in other words, all doctrines of implied pre-emption are eliminated. . . . The existence of an express pre-emption provision tends to contradict any inference that Congress intended to occupy a field broader than the statute's express language defines.").

         Thus, when a statute expressly states the Legislature's desire to preempt or not preempt a field, the statute controls and resort to the remaining Llewellyn factors is unnecessary. In this case, because MCL 123.1102 and MCL 123.1101 show the Legislature's intent to preempt some local units of government from regulation but not others, that intent controls.[5] Because those statutes exclude school districts from an otherwise precise list of local units of government prohibited from regulating firearms, the districts' policies are not field-preempted. To the extent that Mich Coalition for Responsible Gun Owners v City of Ferndale, 256 Mich.App. 401, 414; 662 N.W.2d 864 (2003), cited MCL 123.1102 as supporting the proposition that "state law completely occupies the field of [firearms] regulation," we overrule it.

         2. IMPLIED CONFLICT PREEMPTION[6]

         In a secondary argument advanced only in their supplemental briefs, the plaintiffs and their supporting amicus contend that the districts' policies conflict with various statutes, particularly MCL 28.425o and MCL 750.237a, which they read as implying a state-law right to openly carry firearms on school property.[7] We decline to reach this argument because we conclude that the plaintiffs abandoned it by failing to assert it in their applications for leave to appeal. Michigan Gun Owners' Application for Leave to Appeal, p 7 (stating the sole question presented as "whether a school district is impliedly/field preempted from promulgating firearm rules or regulations"); Michigan Open Carry's Application for Leave to Appeal, p vi (same); Michigan Gun Owners' Application, p 20 (asserting that "[a]ppellants acknowledge that the [Ann Arbor Public Schools] policy does not directly contradict with the state statutory scheme"); Michigan Open Carry's Application, p 12 (stating that "Michigan Open Carry, Inc. does not claim that the school's firearm regulation is statutorily preempted"). See Mitcham v Detroit, 355 Mich. 182, 203; 94 N.W.2d 388 (1959) (stating that "[f]ailure to brief a question on appeal is tantamount to abandoning it").

         And the plaintiffs were perfectly clear at oral argument that they were not advancing a conflict-preemption argument. When asked to elaborate on this separate preemption theory, counsel for both of the plaintiffs balked except to offer a belated attempt to brief the issue.[8] "In our adversary system, in both civil and criminal cases, in the first instance and on appeal, we follow the principle of party presentation. That is, we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present." Greenlaw v United States, 554 U.S. 237, 243; 128 S.Ct. 2559; 171 L.Ed.2d 399 (2008). The plaintiffs decided not to present this issue, and so we decline to reach it.[9]

         III. CONCLUSION

         These are straightforward cases. The Legislature has, expressly, restricted some but not all local governments from regulating firearms. Schools in particular are not on the preempted list, quite possibly for reasons not difficult to imagine. In any case, the clarity of the statute that we are bound to respect is entirely inconsistent with the notion that the Legislature plainly intended to occupy the field here. Of course, if the Legislature in its wisdom sees fit to allow open firearms on all school grounds, no matter what local school districts may variously desire, it can say so.

          Viviano, J. (concurring).

         I concur fully in the majority opinion. I write, however, to explain why I disagree with the dissent, which concludes that the defendant schools lacked authority to issue the policies here because of a purported conflict with state law. The dissent's reasoning is flawed-its conclusion is premised on a misreading of our statutes and a misunderstanding of our conflict-preemption doctrine.[1]

         Before addressing the precise issue at the heart of the dissent's analysis, it is well to remember what this case is not about. No party has raised a constitutional challenge to the school policies at issue. And no justice believes that the Legislature has expressly preempted the school districts' policies or impliedly occupied the field of firearms regulation.[2] The issue raised by the dissent is a narrow one: whether the school policies directly conflict with a state law and are therefore preempted by it.

         In order for a state law to conflict with and preempt a local regulation, the state law must expressly permit something the local regulation prohibits:

It has been held that in determining whether the provisions of a municipal ordinance conflict with a statute covering the same subject, the test is whether the ordinance prohibits an act which the statute permits, or permits an act which the statute prohibits. Accordingly, it has often been held that a municipality cannot lawfully forbid what the legislature has expressly licensed, authorized, permitted, or required, or authorize what the legislature has expressly forbidden.
* * *
The mere fact that the state, in the exercise of the police power, has made certain regulations does not prohibit a municipality from exacting additional requirements. So long as there is no conflict between the two . . . both will stand. The fact that an ordinance enlarges upon the provisions of a statute by requiring more than the statute requires creates no conflict therewith unless the statute limits the requirement for all cases to its own prescription. Thus, where both an ordinance and a statute are prohibitory, and the only difference between them is that the ordinance goes further in its prohibition but not counter to the prohibition under the statute, and the municipality does not attempt to authorize by the ordinance what the legislature has forbidden or forbid what the legislature has expressly licensed, authorized, or required, there is nothing contradictory between the provisions of the statute and the ordinance because of which they cannot coexist and be effective. Unless legislative provisions are contradictory in the sense that they cannot coexist, they are not deemed inconsistent because of mere lack of uniformity in detail.[3]

         Our caselaw thus stands for the proposition that "what the State law expressly permits an ordinance may not prohibit."[4]

         The dissent posits that two statutory provisions, MCL 750.237a(5)(c) and 28.425o(1)(a), when read together, give concealed pistol license (CPL) holders the right to openly carry a firearm on school property. Because a school's power to provide for the safety of its students is subject to state law, [5] including these provisions, the dissent concludes that the schools have no authority to ban the open carrying of firearms by CPL holders. Under this reasoning, state law permits what the policies prohibit, and thus it preempts those policies.

         The dissent misreads our statutes. In order to determine what rights a person has by virtue of holding a CPL, the appropriate place to begin our analysis is the act that was intended to, among other things, "prescribe the rights and responsibilities of individuals who have obtained a license to carry a concealed pistol." MCL 28.421a. A few sections later, in MCL 28.425c(3), the Legislature describes the conduct authorized by a CPL, stating as follows:

Subject to [MCL 28.425o] and except as otherwise provided by law, a license to carry a concealed pistol issued by the county clerk authorizes the licensee to do all of the following:
(a) Carry a pistol concealed on or about his or her person anywhere in this state.
(b) Carry a pistol in a vehicle, whether concealed or not concealed, anywhere in this state.

         This provision, by itself, opens a gaping hole in the dissent's theory that, by virtue of their status as licensees, CPL holders have the right to openly carry a firearm on school property. Leaving aside, for the moment, its limiting language, this section authorizes a CPL holder to carry a concealed pistol on or about her person anywhere in the state; but it only authorizes the open carrying of a pistol (i.e., "whether concealed or not concealed") if it is done in a vehicle. Under well-established interpretative principles, by expressly authorizing a licensee to openly carry a pistol in a vehicle, the statute cannot be read as authorizing a right to openly carry a pistol more broadly.[6]

         Not finding such a right in the place where one might expect it to be (at least, if one accepts the dissent's theory that the right to openly carry a firearm on school property is somehow connected to a person's status as a CPL holder), the dissent looks instead to the Michigan Penal Code as the source of a CPL holder's rights in this regard. In particular, the dissent places great emphasis on MCL 750.237a, which makes it a crime for a person to possess a weapon in a weapon-free school zone unless that person is a CPL holder.[7] However, despite the dissent's protestations, an express right to openly carry a firearm on school property cannot be found in this criminal statute, either.

         MCL 750.237a must be read in pari materia with MCL 28.425o(1)(a), [8] which provides that, except in narrow circumstances, a CPL holder may not carry a concealed pistol on school property. By its terms, MCL 28.425o(1)(a) pertains only to CPL holders and provides limitations on where they may carry a concealed pistol unless an exemption applies.[9] Unlike MCL 28.425c, MCL 28.425o does not authorize any conduct and makes no reference to unconcealed or open carrying of pistols or any other type of weapon. Thus, it is rather unremarkable that MCL 28.425o does "not prohibit[] [a CPL holder] from possessing an openly carried firearm on school property."[10] This ...


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