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Legal Watch: Guns on Campus: What Are the Limits?

 

 

By Ada Meloy
 
The recent shootings at the University of Texas at Austin and the University of Alabama at Huntsville, the infamous gunman at Virginia Tech in 2007, and the deadly shootings at Northern Illinois University in 2008 have brought the debate about weapons on university campuses to the fore. Opposing sides have diametrical views: Guns on campus will either enhance safety or hinder safety. For campus leaders, the debate can be particularly polarizing, because courts have established that colleges and universities have a duty to take adequate measures to maintain a safe environment for their students, faculty, and staff. In exercising this duty, institutional leaders must understand the laws governing weapons on campus and what discretion campuses retain in establishing their own regulations.
 
New Rules of Play
Two recent Supreme Court cases have broadened the application of the Second Amendment, the right to bear arms. While most states incorporate this right in their constitutions, the decision in McDonald v. Chicago held that the Second Amendment right to bear arms is expressly applicable to the states.1 This case, along with D.C. v. Heller, which protects an individual’s right to possess a firearm unconnected with militia service, resulted in the city of Chicago repealing municipal ordinances banning the possession of most handguns.2
 
These decisions, however, do not mean that colleges and universities are powerless to limit weapons on campus, but that they must be diligent when evaluating current or drafting new campus weapon policies. Institutions must closely examine where state laws stand on the issue of guns on campuses. Next, they must use the state and local laws to figure out what, if any, power they have to issue their own policies. Finally, institutions must examine what specific safety issue they are facing and whether an alternative to a complete ban can address that issue.
 
Role of State Law in Formulating Campus Policies
First, colleges and universities must examine whether they are considered “sensitive” places. In Heller and McDonald, the Supreme Court found that laws completely banning handguns in homes and neighborhoods are unconstitutional. However, the court left unchanged the longstanding prohibition on the possession of firearms in sensitive places such as schools and government buildings.3 This limitation depends on what each state considers a “sensitive” place.

Second, institutions must examine how the state law addresses the issue of firearms on campuses. Various types of laws govern firearms. Twenty-four states completely prohibit concealed weapons on college campuses, even for those who have a concealed handgun license.

If state laws have addressed carrying guns on campuses, then institutions must follow their state’s law. This issue has arisen several times in courts. In 2006, the University of Utah issued a ban on weapons on campus, contradicting state law. The Supreme Court of Utah held that public universities lack authority to enact firearm policies in opposition of Utah law.4 Most recently, the issue arose in Colorado, where a university was prohibited from enacting a policy to ban concealed weapons, because colleges and universities were not explicitly included in the law, which listed the sorts of locations where concealed weapons may be entirely prohibited.5

Another 15 states, with “right to carry” laws, allow university discretion in regulating concealed weapons on campuses. Determining which types of policies are permitted requires inquiries into whether a state has specifically set colleges and universities as an exception, whether the state has provided discretion to its colleges and universities, or whether the state has provided exceptions, but not included higher education institutions.
 
A Little Creativity
Colleges and universities must think creatively about the specific needs of their campus with regard to safety. For instance, an institution with a significant number of hunters among students or staff may be concerned with the theft of guns left in vehicles. To solve this problem, the institution may open a mandatory weapons storage unit.6 Tailoring policies to meet security concerns while taking into account the needs of the student body enables the institution to tolerate some weapons on campus while still addressing safety issues.

The recent cases of Heller and McDonald established that a complete ban on firearms by a government is unconstitutional, yet the longstanding restriction of firearms in “sensitive” places remains. The full effect of both cases will be clarified as challenges to gun bans make their way to state supreme courts. What is clear is that states can take measures to enact restrictions and those restrictions may affect implementation of weapon policies on campuses.
 
 
Ada Meloy is general counsel for the American Council on Education. She gratefully acknowledges the assistance of Laticia Sanchez, law intern, in preparation of this article.
 
 
Notes:
1. 130 S. Ct. 3020 (2010).
2. Nat’l Rifle Assoc. v. City of Chicago, No. 08-4244, 2010 WL 3398395 (7th Cir. Aug. 25, 2010).
3. D.C. v. Heller, 128 S. C t. 2783 (2008).
4. Univ. of Utah v. Shurtleff, 144 P.3d 1109 (Utah 2006).
5. SCCC v. Regents of Univ. of Colorado, No. 09CA1230, 2010 WL 1492308 (Colo. App. April 15, 2010).
6. NDS U opening weapons and ammo storage site. The Grand Forks Herald, October 14, 2010.