Litigating Guns in Schools

  • Date:
  • November 11, 2020

Last Friday, the Michigan Supreme Court issued an order in a case it was holding until the U.S. Supreme Court decided New York State Rifle & Pistol. The Michigan case, Wade v. University of Michigan, concerns the constitutionality of the University’s ban on weapons on campus property. In accepting review of the case, the Michigan Supreme Court directed the parties to brief three issues:

(1) whether the two-part analysis applied by the Court of Appeals is consistent with District of Columbia v Heller, 554 US 570 (2008), and McDonald v Chicago, 561 US 742 (2010), cf. Rogers v Grewal, 140 S Ct 1865, 1867 (2020) (Thomas, J., dissenting);

(2) if so, whether intermediate or strict judicial scrutiny applies in this case; and

(3) whether the University of Michigan’s firearm policy is violative of the Second Amendment, considering among other factors whether this policy reflects historical or traditional firearm restrictions within a university setting and whether it is relevant to consider this policy in light of the University’s geographic breadth within the city of Ann Arbor.

In the lower courts, the University prevailed against the individual plaintiff who sought to invalidate the policy. The University revised its policy in 2001 to mandate that campus buildings and property be weapons-free, even for people with a state-issued concealed carry permit. The policy provided that the Director of the University’s Department of Public Safety could waive the prohibition “based on extraordinary circumstances,” but any waiver had to define in writing its scope and duration. After the plaintiff was denied a waiver, he sued, claiming that (1) the policy violates his state and federal constitutional right to bear arms, and (2) the policy is preempted by Michigan law.

In 2017, the Court of Appeals—in a divided vote—rejected his claims. Deeming his state constitutional claim abandoned, the court went directly to assess the Second Amendment argument. It applied the two-part framework adopted by other courts in the wake of Heller, which looks first to whether the law burdens conduct falling within the scope of the Second Amendment and then, if so, whether the law passes means-end scrutiny (or what the court of appeals called “an intermediate level of constitutional scrutiny”). At the first step of the inquiry, the court considered whether a university qualifies as a sensitive place where firearms can permissibly be excluded. To do that task, it engaged in a historical and linguistic analysis to determine whether a university would have qualified as a “school” (which Heller expressly invoked as a sensitive place) in 1868, when the Fourteenth Amendment was ratified. The court concluded that a university would have been considered a school at the time and therefore a sensitive place from which guns could be excluded. Therefore, the policy did not burden Second Amendment rights and “no further analysis is required.”

As to preemption, the court concluded that the state’s broad preemption statute is limited to restricting only those “local units of government” expressly identified in the text, not the University, which “has a unique legal character as a constitutional corporation possessing broad institutional powers.” The dissenting judge would have held that the University policy was preempted by state law and avoided the Second Amendment question altogether.

All three questions the Michigan Supreme Court directed the parties to address—the methodology for Second Amendment questions, the level of scrutiny to be applied if the two-part framework is used, and the status and boundaries of the “sensitive places” doctrine—are major issues subject to considerable debate. Since the court will be deciding these questions based on the Second Amendment and not its state constitutional analogue, there’s a possibility the case could make its way to the U.S. Supreme Court before it’s finished. Whether that happens or not, it’s certainly a case to watch.