Can members of Congress carry firearms on the Capitol complex?

Can members of Congress carry firearms on the Capitol complex?
© Greg Nash

With President TrumpDonald TrumpFive takeaways from the Ohio special primaries Missouri Rep. Billy Long enters Senate GOP primary Trump-backed Mike Carey wins GOP primary in Ohio special election MORE banned from Twitter and out of the White House, the constitutional atrocities are fewer and further between these days. But fear not. Congressional Republicans appear happy to step into the spotlight so that America’s civic lessons may continue. 

The latest question concerns House Speaker Nancy PelosiNancy PelosiFive takeaways from the Ohio special primaries On The Money: Biden issues targeted eviction moratorium | GOP skepticism looms over bipartisan spending deal 'The Squad' celebrates Biden eviction moratorium MORE’s (D-Calif.) authority to keep guns off the House floor or whether Republican members can carry firearms with impunity under the 27th (not the 2nd) Amendment to the Constitution.

In a standoff with Capitol Police on Jan. 12, freshman Rep. Lauren BoebertLauren BoebertHouse GOP stages mask mandate protest House at war over Jan. 6 inquiry, mask mandate GOP, Democrats battle over masks in House, Senate MORE (R-Colo.) set off metal detectors installed at entrances to the Capitol in the wake of the insurrection riots of Jan. 6. Boebert’s own role in encouraging the Jan. 6 violence has prompted calls for investigation. She was eventually let into the House chamber without a search of her bag, claiming that she is “legally permitted to carry my firearm . . . within the Capitol complex.”

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On Feb. 3, the House of Representatives adopted a rule imposing a $5,000 fine on lawmakers who refuse to comply with the new security measures, including screening via metal detectors. The second offense carries a $10,000 fine. If members refuse to pay, the fines will be deducted from their federal paychecks after 90 days. “It is tragic this step is necessary,” Pelosi explained, “but the Chamber of the People’s House must and will be safe.”

The Boebert incident was among at least a dozen cases of Republican members flouting the new security measures by triggering metal detector alarms. On Jan. 21, Rep. Andy HarrisAndrew (Andy) Peter HarrisOvernight Health Care: Biden officials says no change to masking guidance right now | Missouri Supreme Court rules in favor of Medicaid expansion | Mississippi's attorney general asks Supreme Court to overturn Roe v. Wade House GOP leaders say vaccine works but shouldn't be mandated Acquiescing to Berlin, emboldening Moscow and squeezing Kyiv: Biden and Nordstream 2 MORE (R-Md.) was identified by Capitol Police as actually attempting to carry a firearm onto the House floor.

Rep. Thomas MassieThomas Harold MassieBiden asks Pentagon to examine 'how and when' to mandate COVID-19 vaccine for troops House at war over Jan. 6 inquiry, mask mandate Tempers flare as some in GOP ignore new House mask mandate MORE (R-Ky.) tweeted on Jan. 13 that fines would violate the 27th Amendment to the Constitution by altering members’ compensation before the next election. This is a legal stretch, to say the least.

The 27th Amendment provides that “No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of representatives shall have intervened.” It was designed as an anti-corruption measure. Article I of the Constitution provides that Congress sets its own compensation (the Articles of Confederation had given the states that task), so the potential for self-dealing to enrich members’ pocketbooks while in office was a significant concern to the Framers.

The amendment was part of the original 12 sent out of state legislatures by the First Congress for ratification. Ten became the Bill of Rights. The text of the 27th Amendment wasn’t finally ratified until 1992, after a student by the name of Gregory Watson did some historical research in the wake of a succession of Congresses voting themselves significant pay raises in the 1970s and 1980s (resulting in a near-tripling of the salaries in both houses over two decades). Watson successfully rallied for ratification of the compensation amendment, left for dead for nearly 200 years. 

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In 1994, former Rep. John BoehnerJohn Andrew BoehnerA new kind of hero? Last week's emotional TV may be a sign GOP up in arms over Cheney, Kinzinger Freedom Caucus presses McCarthy to force vote to oust Pelosi MORE (R-Ohio) and 27 other members of Congress sued the secretary of the Senate, the clerk of the House and the president of the United States, claiming that a statutory mechanism for an annual cost of living adjustment (COLA) violated the 27th Amendment. The U.S. Court of Appeals for the District of Columbia Circuit rejected the challenge, concluding that the 27th Amendment — which the court deemed “the Madison amendment” after its original supporter, James Madison — authorizes Congress to pass a law that applies a specific formula to the COLA every year after. In other words, Congress need not pass a separate law for each COLA every single year.

When it comes to the new firearms penalty, the Constitution says a bit more.

Article I, Section 5 of the Constitution provides that “Each House may determine the rules of its proceedings, punish its members for disorderly behavior . . . .” The House of Representatives may accordingly discipline its members for violations of statutory law and internal congressional rules. In addition to censure, reprimand or expulsion there is precedent for impositions of a fine against members pursuant to this constitutional authority. House rules delegate the sanctions process to the House Committee on Ethics. And a federal statute explicitly bans firearms on Capitol grounds except as authorized by the Capitol Police, which issued regulations prohibiting “firearms, dangerous weapons, explosives, or incendiary devices . . . on U.S. Capitol Grounds” for “both staff and members of the public.”

If a member of Congress were to disobey the rules and force a firearm into the Capitol, the House would likely win any litigation that could ensue over an unpaid fine. Even if a fine qualifies as affecting “compensation” within the meaning of the 27th Amendment (which is not altogether clear), courts would be hard-pressed to snub Article I. The Constitution recognizes that the House has the authority and responsibility to manage its own business so that it can get its work done on behalf of the American people. The 27th is an anti-corruption amendment to the Constitution. It hardly empowers members to disrupt the work of the legislature by corrupting the safety of the chamber. It’s too bad that much even needs to be said.

Kimberly Wehle is a professor at University of Baltimore School of Law and author of the books "How to Read the Constitution — and Why,” and “What You Need to Know About Voting — and Why.” Follow her on Twitter @kimwehle.