Colleges emerge as latest battleground in fray over concealed weapons. These snapshots of changes and potential alterations to campus gun laws around the country illustrate a growing battle between  those who think that allowing concealed weapons at colleges and universities would make students feel more secure, versus those who believe it would diminish student safety

Claydon, Patricia

James, Sheryl

Vloet, Katie

English

University of Michigan School of Law

Law Quadrangle (formerly Law Quad Notes) Volume 53 Number 2 Article 5 Fall 2010 Guns on Campus? Sheryl James University of Michigan Law School Katie Vloet University of Michigan Law School Patricia Claydon University of Michigan Law School Follow this and additional works at: https://repository.law.umich.edu/lqnotes Recommended Citation Sheryl James, Katie Vloet & Patricia Claydon, Guns on Campus?, 53 Law Quadrangle (formerly Law Quad Notes) - (2010). Available at: https://repository.law.umich.edu/lqnotes/vol53/iss2/5 This Article is brought to you for free and open access by University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Law Quadrangle (formerly Law Quad Notes) by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact mlaw.repository@umich.edu. 1 2Colleges Emerge as Latest Battleground in Fray Over  Concealed WeaponsGunsonCampus?By Sheryl James and Katie Vloet Illustrations by Patricia Claydont t tIn Colorado, the Court of Appeals recently ruled in favor of allow-ing students with con-cealed weapons permits to carry guns on campus, prompting the University of Colorado regents to fight to keep the school’s longstanding gun ban in place.In Texas, the state Senate has passed a bill that would allow students and faculty members to carry concealed weapons on college and university campuses. The sponsor of the bill contends that such a measure could protect students in situations like the mass shootings at Virginia Tech in 2007.And in Michigan, proposed legislation would allow concealed firearms on campuses, superseding or-dinances such as U-M’s existing ban. At campuses around the state, advocates of repealing gun bans have worn empty holsters as displays of protest against campus restrictions, while groups such as the Michigan Student Assembly have fought against the proposed legislation.These snapshots of changes and potential alterations to campus gun laws around the country illustrate a growing battle between those who think that allowing concealed weapons at colleges and universities would make students feel more secure, versus those who believe it would diminish student safety.The campus clash is a microcosm of the larger gun debate in the nation, which rarely has been more contentious than earlier this year, when the U.S. Supreme Court ruled in McDonald v. Chicago that an individual’s right to keep and bear arms applies not just to federal jurisdictions but also to states. The ruling gave renewed focus to advocates and opponents alike, with both sides claiming a measure of victory.The debate about concealed weapons on campuses “reflects the discussion nationally off campus,” says Suellyn Scarnecchia, ’81, U-M’s vice president and general counsel. “Is it that you’re improving your own individual safety if you can carry, or, in fact, is it making your life more dangerous because you’re carrying? And how should the law respect your right to make that decision on your own? On the other hand, should the government be able to say that, at least in some contexts, it’s not safe for people to carry weapons at all?” Silent  Protest, Noisy  DebateOne day last year, a hand-ful of U-M students strode around campus to and from classes wearing empty gun holsters. It was a protest, albeit a small, silent one, against University ordi-nances prohibiting stu-dents, including those with concealed weapons per-mits, from carrying guns on campus.Senior Julian Lizzio, 23, was one of the holster-wielding students—and it was he who gathered the other protest participants. “When I found out you couldn’t carry concealed weapons on campus, that really bothered me,” says Lizzio. “I saw that as an inappropriate restriction, so I started to get to work.”He joined a relatively new group active on many campuses in the United States, including at least 11 in Michigan, called Students for Concealed Carry on Campus (SCCC). The group’s official contention is that the Second Amendment overrules local and state authority on gun rights, thus nullifying city or county ordinances that prohibit guns. Lizzio concedes that Michigan’s state gun laws do not mention universities one way or another. The SCCC contends that this omission opens up the door for guns on campus. Others, of course, disagree—notably most Michigan universities, including U-M. Legal experts representing these institutions say they have the right as separate and autonomous entities to establish and enforce gun laws in the face of less restrictive state and federal law. This issue of the autonomy of universities and colleges has arisen in other guns-on-campus efforts, notably in the University of Colorado’s defense of its right to ban concealed weapons.At U-M, an ordinance that is similar to those in place on other campuses prohibits “any firearm or any other dangerous weapon as defined or interpreted under Michigan law,” and it does not exempt those with concealed weapons permits, or others autho-rized by law to possess or use weapons (other than law enforce-ment officials). When the legislation came before the Michigan Legislature last year, representatives from some colleges and universities made the case that reversing the ban would be potentially harmful to students. During a committee hearing, U-M Police Chief Ken Magee called a reversal of the ban a “recipe for disaster.” “The overwhelming majority of our campus members, including students, faculty, and staff, as well as parents of our students, demand a safe and secure campus and would not endorse the idea of having firearms on campus,” Magee said, according to annarbor.com news coverage. “The only guns and weapons I would like to see on campus are those held by law enforcement officers specially trained in the use of weapons.”And Scarnecchia notes that Michigan law does not expressly prohibit universities from adopting firearm possession or use policies. It is precisely the lack of express prohibition, some contend, that opens up enough of a gray area to leave U-M’s gun policies vulnerable. David Burnett, SCCC public relations director, contends that since Michigan’s law states “that the only places where state statute forbids students from carrying concealed weapons are stadiums, dorms, and classrooms, that basically means everyone else on campus can carry.”The organization references a state law that says: “A local unit of government shall not impose special taxation on, enact, or enforce any ordinance or regulation pertaining to, or regulate in any other manner the owner-ship, registration, purchase, sale, transfer, transportation, or possession of pistols or other firearms, ammunition for pistols or other firearms, or components of pistols or other firearms, except as otherwise provided by feder-al law or a law of this state.”The SCCC website con-cludes: “The above is re-ferred to as ‘preemption’ and means that no other forms of government can make their own firearms laws. SCCC be-lieves that colleges who then regulate firearms—by banning them on their entire campus, for example—are thus in violation of this act.”Some proponents of gun pro-hibitions on campuses note that colleges and universi-ties are not “local unit[s] of government,” as the SCCC suggests, and therefore would not be subject to this law.In addition to U-M, other Michigan colleges and universities are grappling with the same quandary. Michigan State University, Eastern Michigan University, and Oakland University, for instance, have policies similar to U-M’s. Wayne State University’s student code of conduct prohibits “unauthorized use, possession, or storage of a weapon,” and WSU leadership has made clear its opposition to guns on campus.OU President Gary Russi, facing pro-gun group campus demonstrations, issued a campus-wide e-mail in April saying that while the university stands by its anti-gun ordinance, “regrettably, we cannot interfere with an individual carrying a weapon on campus in accordance with state law.”Meanwhile, three bills have been introduced in the Michigan Legislature seeking to broaden gun rights. All were proposed in 2009; none has progressed very far—at least not yet. One bill would eliminate the expressed prohibition in Michigan’s law barring guns in dorms or classrooms. Another essentially would eliminate all gun-free zones. The third proposed law would prohibit public higher education institutions from establishing any gun ordinances of their own. Groups such as the Brady Campaign to Prevent Violence, Students for Gun Free Schools (SGFS), and The Campaign to Keep Guns Off Campus are fighting efforts to allow guns on campus. The latter group offers a resolution that has already appeared on several Michigan cam-puses. The American Association of State Col-leges and Universities and at least 130 individual university presidents have signed this resolution.SGFS maintains that guns would “detract from a healthy learning environ-ment,” according to its website, and would cre-ate additional risk. The group also argues that “shooters will not be de-terred by concealed carry permit holders.” Dennis Henigan, vice president for law and policy at the Brady Center to Prevent Gun Violence in Wash-ington, D.C., and author t t tof Lethal Logic (Potomac Books, 2009), contends that “a very per-suasive argument can be made that guns are particularly inappro-priate in or near institutions of learning, especially college campuses, where there are issues of drinking, drug use, fairly high-density living.” SCCC states that 11 colleges and universities in the United States that currently allow concealed carry on campus have not seen any increase in crime or gun violence. That guns would increase crime is a misconception, says SCCC’s Burnett: “Just because a criminal uses a gun to kill somebody doesn’t mean that everyone should stop carrying guns.”Both sides of the debate reference the carnage at Virginia Tech University and Northern Illinois University and argue that a gun-bearing student could encourage or deter such violence. It’s an issue full of complications and emotion—and likely to remain so, since recent Supreme Court decisions have not fully clarified the issue of who has a right to carry a gun, where, and when. ‘How Big Constitutional Change Happens’Before the Supreme Court announced its decision in the McDonald v. Chicago case in June, observers were hoping for clarity that was not provided by District of Columbia v. Heller, a 2008 case in which the Court decided the Second Amendment allowed an individual to possess a firearm for private use within the home in federal enclaves. They may not have gotten the clarity they wanted, but observers certainly were reminded that the Second Amendment is open to many different interpretations. The McDonald decision is historic, says Richard Primus, U-M professor of law and a constitutional law expert. When asked who at this point is an expert on the Second Amendment, he replies that right now, “nobody is. I mean it seriously. Because until the last couple of years, there has been no law of the Second Amendment; it’s all brand new. People who are described as Second Amendment experts, or even worse, describe themselves as Second Amendment experts, are just people who are imagining things at this point.“It’s a very interesting case for constitutional law,” Primus continues. “It’s not often in constitutional law that we get doctrine under a clause of the Constitution where there was no doctrine before. It’s a new departure under constitutional law.” Some say Heller was still being digested when the Court was considering McDonald, which is why some of the many amicus briefs filed for both sides urged judicial restraint in its McDonald ruling. Leonard Niehoff, attorney at Butzel Long in Ann Arbor and a Michigan Law lecturer, was principal author of one of those briefs, filed by the Anti-Defamation League (ADL), in support of the City of Chicago.“The ADL did this primarily because they were concerned the Supreme Court might restrict the ability of states to adopt useful and lawful gun control laws,” Niehoff says. “Most people have the misconception that most gun regulation is at the federal level. But most are at the state and local level.”Within that context, the ADL’s specific concern was the ability of local and state laws to keep guns out of the hands of “extremists, terrorists, and hate criminals,” and the organization urged the Court to use judicial restraint.Niehoff says that, like some of the other amicus briefs, the ADL brief assumed that the Court might incorporate the Second Amendment against the states. So the ADL brief focused on a different question: What standard should be used to decide whether state laws are valid under the Second Amendment?“The ADL brief asked the Court to save that question for another day,” he says. “And that is precisely what the Court did. In fact, the Court was very careful to steer around the question of the standard that now applies to state regulations.”One of the most interesting, and historic, aspects of the opinion, says Primus, is that it “shows that a mobilized political movement can sometimes change how constitutional law works. These 1 7decisions actually illustrate the idea that the Constitution is a living, evolving set of laws, because 30 years ago, no court would have done this. But over the last 30 years a political movement has changed the way people think about the Constitution.” Earlier such cases include Roe v. Wade and Brown v. Board of Education, Primus points out.“This is how big constitutional change happens. Social, political movements put forward their vision of an ideal, and they convince people, including officials, including judges, that that ideal is part of what that Constitution requires, even if in a previous generation it was settled … that that isn’t what the Constitution requires. But ideas change over time, and constitutional law changes over time.”The Effect of McDonald on CampusesU-M and other colleges and universities may face challenges to their gun ordinances in the future. If that happens, they may be able to argue that a university remains a special type of organization that can constitutionally prohibit weapons, predicts the Brady Center’s Henigan. The Heller case established that, and McDonald essentially reaffirmed it, he says.Legal challenges to campus gun bans “are very likely to fail, first of all, because the right that was recognized in Heller is a right to have a gun in the home for self defense; it in no way recognized the right to have a gun in a public place, much less on a college campus,” Henigan says. “Secondly, Heller also explicitly recognized that the decision throws no doubt at all on long-standing restrictions on firearms, and one of the categories of restrictions the Court mentioned is having guns in sensitive places, and it said, ‘like schools.’”States that have laws preempting local governments from enacting gun laws stricter than the state law raise the question, “Is a university a local government?” The Colorado case is addressing that, but that affects only Colorado. If the same challenge occurred in Michigan, it would depend on how Michigan courts rule. Primus predicts that, “most likely, McDonald will have very little effect at U-M, because the Court said in this decision, just as it said in Heller, that the outcome they reached doesn’t mean that states and localities cannot enact reasonable restrictions on firearms. It means that they can’t enact complete bans on certain kinds of firearms, including handguns. “But they can still enact all kinds of reasonable regulations, including regulations about where firearms can be used and regulations preventing certain kinds of people, like the mentally ill or felons, from possessing firearms, and restrictions about where firearms can be possessed and carried. For example, we can say people can’t carry firearms near schools or government buildings, and it’s possible that it will be reasonable to restrict the concealed carry of firearms.”Of the opinion, SCCC’s Burnett says, “We don’t expect to rely on any one specific element of the McDonald ruling to make our case, since the ruling was somewhat narrow and not tailored to the colleges. However, it does raise the question, if the mayor of Chicago cannot enact a complete ban on guns, what makes an unelected panel of college bureaucrats think they can?”It’s difficult to predict whether courts will go beyond this decision and limit the ability of states and localities to regulate firearms in ways that are short of a complete ban, Primus notes, adding that the Supreme Court says existing regulations of firearms in most states and localities “are mostly fine.”“Whether McDonald is a good or bad thing depends mostly on whether it’s a good or bad thing for guns to be more freely available. That’s a public policy question. This ruling will probably further embolden the people who want to get rid of all gun restrictions. “A lot will depend also on whether people who want to stick up for gun regulation roll over or stand up and fight politically.”

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