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Guns on Campus Post-Bruen

By on November 21, 2022 Categories: , ,

Last Monday, many of us awoke to the terrible news about a shooting at the University of Virginia on Sunday night that left three students dead and two others injured. Another public college not far away, Virginia Tech, was the site of a horrific mass shooting in 2007 that killed 32 people and injured 17 others—and spurred a campus carry advocacy movement. As I’ve written about previously, supporters of guns on campus organized in response to the Va. Tech shooting and sought legislation that would require public colleges and universities to allow carrying firearms on campus. They were successful in a number of states through legislation (e.g., Texas in 2015) and in some through litigation (e.g., Colorado in 2012, though advocates were unsuccessful in Montana courts). According to the National Conference of State Legislatures, as of 2019, 10 states allowed gun carrying on campus.

Another state may soon be joining that list, at least if the plaintiff prevails. In Wade v. University of Michigan, the challenger argues that the University’s firearm ban violates his Second Amendment rights. An appellate court previously upheld the regulation, and the case went up to the Michigan Supreme Court. In an order issued last week, the high court vacated the appellate court ruling and remanded the case for reconsideration in light of Bruen.

Justice David Viviano wrote separately, concurring in that remand order “to offer a few thoughts about how [Bruen’s new test] might apply here.” Justice Viviano first noted that the appellate court’s prior ruling had upheld the regulation at least in part on the grounds that universities were considered “schools” and that Heller had said bans in schools were okay. That, he thought, wasn’t sufficient. Heller didn’t clearly bless all bans in all places that could be considered schools. For Justice Viviano, Bruen’s new test meant that there were “at least two historical investigations needed to determine whether the University of Michigan’s firearm regulation is constitutional.”

First, the lower court would have to search for analogous regulations in the historical record. In passing, he stated that his “initial review” revealed some regulations but that “none seems to have been a campuswide ban generally prohibiting open or concealed carry.” Curiously, the laws he cited from this initial review did not include the many university regulations that were complete bans, like those at the University of North Carolina (1799) and the University of Virginia (1824). UVA’s regulation, approved at a board meeting attended by Thomas Jefferson and James Madison, was comprehensive: “No student shall, within the precincts of the University, . . keep or use weapons or arms of any kind.” UNC’s even older regulation was similar: “No student shall keep . . . fire-arms; nor shall he use fire-arms without permission from some one of the Faculty.” (The latter strikes me as not all that dissimilar to the University of Michigan’s challenged regulation that bars guns on campus unless “the University’s Director of Public Safety waives the prohibition for an individual ‘based on extraordinary circumstances.’”).

Second, Justice Viviano thought an additional historical inquiry was required. Even assuming there were analogous (or even identical) bans on guns on college and university campuses in the founding era, maybe that’s not enough. Courts should ask, he said, “are large modern campuses like the University of Michigan’s so dispersed and multifaceted that a total campus ban would now cover areas that historically would not have had any restrictions?  In other words, are historical campuses the best analogy for the modern campus?” He pointed to the ways that universities have changed over time and how many now have, like the University of Michigan, “areas on campus, such as roadways, open areas, shopping districts, or restaurants, [that] might not fit the ‘sensitive place’ model suggested by Heller.”

There are a few noteworthy aspects of this concurrence. First, the surprising absence of readily available examples in Justice Viviano’s opinion (from UNC and UVA) raises yet more concerns about what judges are doing in these cases. Despite not uncovering these accessible sources, his opinion does cite to pro-gun scholarship co-authored by a lawyer who has served as counsel of record in high-profile litigation to one of the most litigious and aggressive advocacy gun-rights groups in the country, the Firearms Policy Coalition.  

Second, his suggestion that “historical campuses” may not be “the best analogy for the modern campus” makes the search for proper analogies even more fraught. Already, courts are spinning trying to figure out what an analogous regulation is that doesn’t have to be a “historical twin” or “dead ringer.” Now Justice Viviano says that maybe even restrictions in the same type of location wouldn’t be enough. Compare this stringent test to the way Bruen and other lower courts have asked if the historical law and contemporary law were addressing “the same alleged societal problem.” Recall that for Bruen, if a modern law seeks to combat a similar social problem as one that existed in the founding era, it is evidence of unconstitutionality if the Founders addressed the problem differently.

According to Bruen—and Heller before it—the laws at issue in those cases were addressing gun violence in primarily urban areas. Those were regulations “the Founders themselves could have adopted to confront that problem,” and the absence of similar regulations from that bygone era suggested the modern laws were unconstitutional. In other words, to the Bruen majority, the social problem of gun violence in urban areas was the same for the Founders in 1791 and the D.C. City Council in 1975. The legislators chose to confront the problem in different ways, and we have to respect the Founders’ way. In that context, then, the inquiry is made at an extremely high level of generality—guns hurting people in cities—but in the historical analogy context, Justice Viviano argues for slicing it very narrowly, requiring a much closer resemblance between the laws than Bruen says are required for assessing the social problems meant to be addressed. The result is an even more onerous burden on the government to sustain contemporary gun laws.

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