Litigation Highlight: Montana Supreme Court Unanimously Upholds Permanent Injunction of Permissive Campus Carry Law
Last month, in Board of Regents v. Montana, the Montana Supreme Court unanimously held that the state’s Board of Regents has the exclusive power to regulate firearms on Montana University System (MUS) campuses. The litigation involved a challenge to Montana House Bill No. 102 (HB 102), which would have allowed the possession and carrying of firearms on state college campuses with limited exceptions. By enacting HB 102, the legislature sought to expand the right to carry guns in public to include state college campuses.
The Board filed suit last May, seeking declaratory relief that HB 102 was unconstitutional as applied to the Board and state college campuses, and an injunction precluding the law’s application. The trial court issued the requested temporary restraining order and ultimately granted summary judgment to the Board and permanently enjoined enforcement of the relevant sections of HB 102. On appeal, the Montana Supreme Court addressed the narrow issue of whether, as the trial court found, the Board “possesses the exclusive authority to regulate firearms on [public] college campuses.”
Since at least 2012, under Board Policy 1006, the Board of Regents has limited those who can carry firearms on campus to police and security officers who meet certain requirements. Additionally, the policy empowers individual campuses to regulate possession and transportation of firearms on their premises. The state’s two largest universities require that students wishing to store guns on campus do so in a centralized gun locker.
HB 102 was signed into law by Governor Greg Gianforte on February 18, 2021. The act revised the state’s gun laws by allowing permitless concealed carry by all individuals eligible to possess guns under federal or state law, outside of a list of sensitive locations. Kansas appears to be the only state that currently requires its public colleges and universities to allow permitless carry (although only for individuals 21 or older). The Kansas law does not apply to areas on campus where “adequate security measures [are taken] to ensure that no weapons are permitted.” Under Montana’s HB 102, guns could still be banned in non-university school buildings, but the law limited the Board’s ability to regulate guns on “university system property” to only discharge, storage and possession in certain contexts—leaving the Board unable to prohibit public carry generally. The bill’s sponsor, Montana State Representative Seth Berglee, stated that the law would erase an “invisible line” around the state’s college campuses.
The key provision of the law for purposes of the Board litigation, Section 6, prohibited the Board and related authorities from “regulat[ing], restrict[ing], or plac[ing] an undue burden on the possession, transportation, or storage of firearms on or within university system property by a person eligible to possess a firearm under state or federal law.” The Board was, however, permitted to regulate certain matters related to guns—including possession and storage in specific locations (such as in an on-campus dormitory where a roommate does not consent, or at an athletic event where security is present), by certain students (such as those with a history of discipline related to violence or substance abuse), and the use of guns in certain ways (such as discharging or brandishing).
In Board of Regents, the Montana Supreme Court first addressed the extent to which the Board’s authority is exclusive under the state constitution. Article X, § 9(2)(a) grants authority to the Board as follows: “The government and control of the Montana university system is vested in a board of regents of higher education which shall have full power, responsibility, and authority to supervise, coordinate, manage and control the Montana university system . . . .” However, § 9(2) also subjects the Board’s funds to standard legislative audits and provides that its members are “appointed by the governor, and confirmed by the senate, to overlapping terms, as provided by law.”
The court cited Marbury v. Madison to illustrate the principle that an enumerated grant of power carries a presumption of exclusivity. Under this formulation, and absent constitutional language to the contrary, the legislature cannot assert control over the Board’s affairs. Reviewing sources from Montana’s 1972 Constitutional Convention, the court found that the Board is intended to function as a “quasi-independent” department of Montana’s government, subject only to “indirect legislative control.” On this point, the court held that “the Framers intended to place the MUS outside the reach of political changes of fortune and instead in the hands of a Board which remained directly responsible and accountable to Montanans.”
The second task for the court was to determine whether the regulation of firearms on MUS properties falls within the scope of the Board’s exclusive authority. The state argued that the Board’s constitutional authority extends only to academic, financial, and administrative matters. But the court ultimately did not need to determine the outer bounds of the Board’s power. Instead, it held that regulating firearms on campus is directly related to the Board’s academic and administrative responsibilities. Because “[s]tudents, faculty, and support personnel rely on the Board to assess security risks and make decisions that will enhance . . . safety, security, and stability,” the court reasoned, “maintaining a safe and secure educational environment falls squarely within the Board’s constitutional authority under Mont. Const. art. X, § 9(2)(a).”
The court went on to note that Montana is no stranger to the effects of gun violence on college campuses, citing two past instances of fatal shootings on university campuses within the state. It also affirmed that regulatory power over firearms on campus is necessary and proper to the exercise of the Board’s general powers. According to the court, “campus safety and security is an integral responsibility of the Board.” Because gun violence is a threat to campus safety and security, the court held, Board Policy 1006 was therefore a proper exercise of the Board’s constitutional authority. Finding that HB 102 unconstitutionally infringed on this authority, the court affirmed the lower court’s decision to permanently enjoin the relevant provisions.
Despite the Board’s victory in this case, the provisions of HB 102 that relaxed public-carry rules outside of the campus setting remain intact and reflect a broader trend of deregulation across the country. Specifically, the bill lifted existing prohibitions on concealed carry in banks and bars. While permitless concealed carry is now allowed in these venues by default, private property owners may expressly ban firearms from their premises. HB 102 also allows individuals to carry guns in state and local government buildings, but only with a valid permit. Twenty-six states have enacted laws allowing permitless concealed carry, also referred to by some as “constitutional carry” laws. Last year, Texas joined the legislative surge and allowed permitless carry. Texans and non-residents who are not disqualified due to factors such as mental incompetency or prior criminal conviction can now carry concealed weapons in public without a permit.
While Board of Regents turned on whether Montana’s legislature could override the Board’s state constitutional authority, discussions about guns on college campuses often focus on the scope of the Second Amendment and a state’s ability to ban guns in sensitive places. Because New York State Rifle & Pistol Ass’n v. Bruen reaffirmed “schools and government buildings” as sensitive places where guns may be banned entirely, it does not appear that a Second Amendment challenge to Montana’s Board Policy 1006 would succeed, even after Bruen. However, the Court’s opinion expressly disclaims any effort “to comprehensively define” the sensitive-places doctrine.
A recent law review note argues that the carve-out for banning guns in schools, which originated in District of Columbia v. Heller, is not intended to capture colleges and universities because they are predominately attended by adults. The note argues that a greater amount of First Amendment regulation is permitted at K-12 schools than institutions of higher learning. And, taking an originalist approach to Heller itself, the author contends that the word “schools” was commonly used to refer to only K-12 schools at the time of the opinion and should be interpreted accordingly.
On the other hand, the regulation of firearms on college campuses has deep roots in American history. As the Center’s Darrell Miller noted in a recent op-ed, students at Harvard were generally prohibited from possessing guns as early as 1655. Similar restrictions were in place at public universities by the early 19th-century, including the University of Virginia. In 1824, with inaugural members Thomas Jefferson and James Madison present, the UVA board resolved to prohibit students from “keep[ing] or us[ing] weapons or arms of any kind” on campus. It is worth noting that these policies applied only to students. Even so, this history of regulation may indicate that campus gun bans are consistent with the Second Amendment. In 2016, Georgia Governor Nathan Deal cited the University of Virginia’s 1824 policy as one of his reasons for vetoing a campus carry bill introduced in his state. Deal later signed the law, which allows permitted concealed carry on public campuses by individuals over 21.
The Board of Regents decision also holds interesting clues for possible future disputes between state legislatures and boards of education regarding campus gun policy. According to the Education Commission of the United States, Montana is one of nineteen states whose constitution establishes a state board to oversee its colleges and universities. In other states, these boards are creatures of statute and potentially more susceptible to disempowering legislation such as HB 102. For example, in 2011 a state appeals court held that the Oregon’ statutory board was preempted from exercising any “authority to regulate firearms.” The court struck down an administrative rule passed by Oregon’s board that generally prohibited the possession of firearms on public college campuses.