House Bill Would Revise the Definition of “Brandish”

On the heels of yet another mass shooting, we can expect the typical public response — an outcry for tighter gun laws to be quickly followed by push-back from the NRA. And, with mid-term elections looming, lawmakers will predictably sit on their hands. Yet, some sensible gun legislation is making its way through Michigan’s Congress.

The UCSB massacre occurred against the backdrop of a swell of open carry activism. Fired-up by the Bundy ranch standoff, advocates are flexing their 2nd Amendment rights across the nation. As these public displays take on an increasingly confrontational tone, law enforcement agencies are understandably responding with concern. Sometimes all it takes is a few bad actors to highlight a problem with the current law as it applies to open-carry.

The media has of late featured some of the more aggressive demonstrations of gun right activists, including a recent case in Kalamazoo where an intoxicated man was carrying a rifle on a sidewalk, not in a sling, and shifting the weapon from shoulder to shoulder, while hurling threats and obscenities at law enforcement. The incident presented police with the dilemma of determining if the individual was in fact “brandishing” his weapon, an act illegal under Michigan law.

The problem is nothing new. In 2008, during the run-up to the presidential election, a Traverse City man embarked upon a campaign of harassment at a local Democratic Party Headquarters. He would enter the building, with a holstered side-arm and proceed to pat the weapon and ask the staff if they were afraid of him and his gun. Under the current interpretation of the law, that behavior, while reprehensible, is not illegal.

That could change under legislation designed to hone-in on the legal definition of “brandish”. HB-5092 passed in the Michigan House with true bipartisan support earlier this year, and has recently been reported out of the Senate Judiciary Committee for a floor vote.

As defined by the dictionary, the word means:


The current precedent in Michigan, set when Jennifer Granholm was Attorney General in 2002, is very similar:

“To wave or flourish menacingly as a weapon; to display ostentatiously; a menacing or defiant wave or flourish.”

What’s receiving more scrutiny these days is this business of using “ostentatious display” as a form of intimidation — a not-so-subtle form of threat. Under the new definition, a weapon that remains holstered could potentially fall into the category of being brandished based on the behavior of the individual.

Law-abiding open carry advocates and police officers are eager to see this matter settled, and much like lawmakers, they generally agree on the solution — finding a definitive meaning for the word “brandish” — and, that’s exactly what this legislation sets-out to accomplish. From HB-5092:

HB 5092

The House Legislative Analysis Team finds that the bill provides a more nuanced interpretation of “brandishing” altogether — the “reasonable person standard” — a position supported by testimony from a representative of Michigan Open Carry. The analysis provided these insights:

“According to a Legal Update by Michigan State Police, Michigan statute does not specifically permit the open carrying of firearms in public, but it doesn’t clearly prohibit it either.”

“Legislation enacted in 1990 prohibiting “brandishing” a firearm in public, did not define brandishing.”

“House Bill 5092 uses the ‘reasonable person standard’, a standard well established in case law, as a threshold for when conduct by a person carrying a firearm crosses the line and becomes menacing.”

A favorite maxim of the gun lobby is “guns don’t kill people, people kill people”. This legislation goes straight to that point — reasonable people should be empowered to evaluate the intent of the person, not the disposition of the weapon.


While we’re talking 2nd Amendment rights…

Another problematic open carry issue making the news is how far that implicit right extends into Michigan’s public schools. Under current law, it is permissible for an individual with a concealed weapons permit to open-carry in a public school. A recent letter to parents in my community from the superintendent of the school district instructed the following:

TCAPS Open-Carry

Strictly speaking, his message is correct. However, when 2nd Amendment rights are compared to 1st Amendment applications, he should have specified the following qualifications: School administrators are legally empowered to remove any individual whose speech or behavior is disruptive to the school environment and/or has no legitimate cause to be on school property — meaning a demonstration of open-carry, in and of itself, is not a reasonable purpose for entering a public school facility. In basic terms, if an exercise of 1st amendment rights is deemed disruptive to the school environment, it may be prohibited, and so should those of the 2nd Amendment.

The take-away message here is simple — those who wish to protect and ensure their 2nd amendment rights through acts of intimidation are not helping their cause, and lawmakers of every political stripe are poised to stop their campaign of threats, no matter how veiled they may appear.

Advocates of 1st Amendment rights never promoted the idea of yelling “fire” in a crowded theater as a demonstration of their power. It’s high time for serious 2nd Amendment supporters to disavow their lunatic fringe too.

DSCN0444Amy Kerr Hardin

Click here for a video message to the NRA from the parents Christopher Martinez who was shot to death at the UCSB mass shooting.

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One Response to House Bill Would Revise the Definition of “Brandish”

  1. Jack Chaffin says:

    The issue is one of prior restraint. If someone yells “Fire” in a crowded theater, and harm results, that person is liable to punishment. Yet he is not PROHIBITED from yelling “fire”. We don’t accept prior restraint in terms of the First Amendment. If someone misuses his Second Amendment rights, he should be liable to punishment. But prior restraint of those rights are not acceptable, either.

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