Fifth Circuit Rejects Constitutional Challenges to "Campus Carry"

Texas, like some other states, allows law-abiding adults who have concealed carry licenses to carry at public universities as well as elsewhere; this was challenged on First Amendment, Second Amendment, and Equal Protection Clause grounds.

|The Volokh Conspiracy |

From yesterday's Fifth Circuit panel decision in Glass v. Paxton (curly braces used to mark moved text), written by Judge Leslie Southwick and joined by Judges Carolyn Dineen King and James Ho:

Three professors from the University of Texas at Austin challenged a Texas law permitting the concealed carry of handguns on campus and a corresponding University policy prohibiting professors from banning such weapons in their classrooms. The professors argued that the law and policy violate the First Amendment, Second Amendment, and Equal Protection Clause of the Fourteenth Amendment. The district court dismissed the claims. We AFFIRM….

[I. First Amendment]

[Plaintiff Prof. Jennifer Glass] … argued her classroom speech would be "dampened to some degree by the fear" it could initiate gun violence in the class by students who have "one or more handguns hidden but at the ready if the gun owner is moved to anger and impulsive action." In an affidavit she expressed particular concern for "religiously conservative students [who] have extreme views," as well as "openly libertarian students," whom she "suspect[s] are more likely to own guns given their distaste for government." …

{In the context of the First Amendment, … "government action that chills protected speech without prohibiting it can give rise to a constitutionally cognizable injury." Such governmental action may therefore "be subject to constitutional challenge even though it has only an indirect effect on the exercise of First Amendment rights." Laird v. Tatum (1972).} [But in such cases, plaintiffs must satisfy] the "requirement that 'threatened injury must be certainly impending.'" Clapper v. Amnesty International (2013)….

[Texas argues that Glass's claim is too speculative to give her standing, because it] rests on the assumption students with concealed-carry licenses, as independent decision-makers, are virtually certain to illegally use their firearms to intimidate, threaten, or commit violence in response to controversial classroom discussion. Glass argues that her fears are neither speculative nor subjective. She challenges the district court's conclusion that she failed to present concrete evidence to substantiate her fears about students.

First, she cites to a "broader community of views" which believes that the presence of guns in the classroom will chill professors' speech. This community of views includes multiple University faculty members and multiple national educational organizations.

Second, she cites to various academic studies discussing a so-called "weapons effect." According to Glass, "[t]hese studies conclude that the hidden presence of guns does threaten disruption of classroom activities, increases the likelihood that violence will erupt in the classroom, and intimidates non-carrying students — and undoubtedly professors, too."

The problem with Glass's argument is that none of the cited evidence alleges a certainty that a license-holder will illegally brandish a firearm in a classroom…. Glass objects to a plain application of the "certainly impending" standard from Amnesty International, arguing that it sets the bar impossibly high. Instead, she asks us to confer standing on the basis that her fears are "objectively understandable and reasonable." We cannot adopt this standard because it was already rejected in Amnesty International. There, the Court rejected the Second Circuit's holding that the plaintiffs had standing because their injury was not "fanciful, paranoid, or otherwise unreasonable." Such a standard, the Court held, "improperly waters down the fundamental requirements of Article III." Parties' "contention that they have standing because they incurred certain costs as a reasonable reaction to a risk of harm is unavailing — because the harm they seek to avoid is not certainly impending."

Contrary to Glass's argument, Amnesty International reiterated that standing is not impossible in every instance in which independent decisionmaking comes into play. An example of the Court's willingness to depart from its "usual reluctance" was Meese v. Keene (1987). In Keene, the plaintiff, a California State Senator, argued that the Department of Justice's decision to label three films as "political propaganda" violated the First Amendment. Under the Foreign Agents Registration Act of 1938, the Department of Justice labeled three Canadian documentaries as "political propaganda" because they could be "reasonably adapted" to "influence the foreign policies of the United States." In order to exhibit the films in public, the State Senator was required to provide a copy of the material to the Attorney General along with a report "describing the extent of the dissemination." Id. In addition, he was required to disclose that by showing the films, he was acting as the agent of a foreign principal.

The Court began by noting that "[i]f Keene had merely alleged that the appellation deterred him by exercising a chilling effect on the exercise of his First Amendment rights, he would not have standing to seek its invalidation." Instead, Keene alleged that the future reputational harm prompting his self-censorship was certain, and not merely possible. In support, he provided detailed affidavits citing public opinion polls showing that approximately one in two voters would be less inclined to vote for a candidate who showed a foreign film labeled as political propaganda by the Department of Justice.

Glass analogizes to Keene by arguing that the same rationale confers standing here. She misreads Keene. Although Keene's allegation of harm involved the contingency of individual voter decisions, he nonetheless alleged certainty about voter decision-making based on supporting affidavits and opinion polling. Indeed, he alleged that "if he were to exhibit the films while they bore such characterization, his personal, political, and professional reputation would suffer and his ability to obtain re-election and to practice his profession would be impaired." By contrast, Glass alleges reasonable probability of future harm from concealed-carrying students. According to her, she is "faced with the knowledge that there is a reasonable probability that sitting at one of the desks in [her] enclosed classroom is a young student" who believes that a "gun can be used when the appropriate circumstances present themselves."

Glass further argues that a denial of standing would improperly fail to construe the factual allegations of her complaint in her favor. Her argument is misplaced for the same reason that Keene is distinguishable. The issue here does not concern the weight given to her factual allegations, but rather the absence of any allegation of certainty about the students' future decisions. Keene alleged certainty about the voters' future decisions based on polling, which empowered him to allege certainty about future reputational harm. Construing the factual allegations of Glass's complaint in her favor, she nonetheless fails to allege what is required under Amnesty International. The requirement is that harm from concealed-carrying students be certainly impending.

The same concerns fueling the Court's "usual reluctance" in Amnesty International are present here. Although Glass's claim centers on the First Amendment, her standing arguments invoke notable separation of powers concerns. By adjudicating claims for which the alleged harm is not certainly impending, federal courts risk disregarding their constitutional mandate to limit their jurisdiction to actual cases and controversies and thereby avoid the issuance of advisory opinions.

Glass cannot manufacture standing by self-censoring her speech based on what she alleges to be a reasonable probability that concealed-carry license holders will intimidate professors and students in the classroom. The district court did not err. Glass lacks standing to bring her First Amendment claim.

[II. Second Amendment]

Glass argues that the Campus Carry Law and University policy violate the Second Amendment because firearm usage in her presence is not sufficiently "well regulated." The Second Amendment states: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." U.S. Const. amend. II. The Supreme Court held that the Second Amendment "guarantee[s] the individual right to possess and carry weapons in case of confrontation." District of Columbia v. Heller (2008). The Court also held that "individual self-defense is 'the central component' of the Second Amendment right." McDonald v. City of Chicago (2010).

Glass contends that to the extent the Second Amendment recognizes an individual right to carry firearms, persons not carrying arms have a right to the practice being well-regulated. Glass's argument collapses the distinction between the Amendment's two clauses: the militia-focused prefatory clause and the operative clause. In Heller, the Court relied on text, history, and tradition to interpret the prefatory clause as "announc[ing] the purpose for which the right was codified: to prevent elimination of the militia." Notwithstanding this distinction, Glass advocates an "independent meaning" of the prefatory clause which recognizes "a constitutional right not to have the government force [individuals] into allowing guns in their professional presence as a condition of public employment unless gun possession and use are 'well-regulated.'" "Like it or not," Glass argues, "there is specific constitutional language that premises the right, whatever its extent, on the use of guns [as] 'well-regulated.'" She argues that the prefatory clause places a "condition" on the individual right.

Her "admittedly fresh" take on the Second Amendment therefore turns on the proper interpretation of the Amendment's prefatory clause. In support, Glass cites to a line in Heller where the Court interpreted "well-regulated" as "the imposition of proper discipline and training." She further relies on one of our opinions where we stated that "gun use and gun control have been inextricably intertwined" such that "an expectation of sensible gun safety regulation was woven into the tapestry of the [Second Amendment] guarantee."

Glass's argument is foreclosed by Heller. In two separate locations in the majority opinion, the Court held that the Second Amendment's prefatory clause does not limit its operative clause: "The [prefatory clause] does not limit the [operative clause] grammatically, but rather announces a purpose." Indeed, the "prefatory clause does not limit or expand the scope of the operative clause." The Amendment's first clause "is prefatory and not a limitation on the amendment itself." Because the operative clause provides the codification of the individual right, the prefatory clause cannot "limit or expand the scope" of the individual right.

The prefatory clause does not limit the scope of the individual right codified in the operative clause. She has failed to state a claim under the Second Amendment.

[III. Equal Protection Clause]

Finally, Glass argues that the Campus Carry Law and University policy violate her right to equal protection under the Fourteenth Amendment because the University lacks a rational basis for determining where students can or cannot concealed-carry handguns on campus…. The parties do not dispute that rational basis review applies because the professors are not members of a protected class nor does the alleged classification infringe a fundamental constitutional right. Under this standard, a legislative classification "must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification." Parties attacking the presumption of validity extended to legislative classifications "have the burden 'to negative every conceivable basis which might support it.'" …

[Glass] argues that there is no rational basis for Texas to allow private universities to ban concealed carry but not public universities. In addition, she argues that there is no rational basis for the University to allow concealed carry in classrooms while simultaneously prohibiting the practice in other campus locations such as faculty offices, research laboratories, and residence halls.

Texas argues that simple explanations provide the needed rational basis. First, the Campus Carry Law distinguishes between public and private universities in order to respect the property rights of private universities. Second, public safety and self-defense cannot be achieved if concealed carry is banned in classrooms because attending class is a core reason for students to travel to campus. Texas argues that public safety and self-defense can still be achieved if concealed carry is banned in less-frequented areas such as faculty offices and research laboratories.

I think the result is right, but I think Glass should have lost even if the Court had held that she had standing to bring her challenge: There is just no First Amendment right to whatever crime prevention techniques a judge can find to be valuable for protecting speakers.

There is a First Amendment right not to be stripped of normal protections because of what you say, or even because you are a speaker: If the government were to, for instance, refuse to provide police protection to certain kinds of political rallies, that would be unconstitutional. But here there is a broadly applicable, speech-neutral rule—concealed carry licenseholders may carry in a vast range of public places. It's up to the legislature to decide which forms of crime control (ones consistent with the Second and Fourth and other Amendments, of course) best prevent crime at the optimal cost, and courts can't second-guess that just because some speakers complain that these general rules aren't sufficiently protective.

Here's a simple analogy: Say that courts say that the government many search the bags of everyone going to an event on university property, without violating the Fourth Amendment. (Let's set aside here whether or not that's the correct reading of the Fourth Amendment.) But say that a university concludes that this unduly interferes with people's privacy rights, and chooses not to allow such searches at any places that are open to the public—football games, cafeterias, or auditoriums. One can debate whether or not that is a good policy, and properly balances the costs and benefits (financial and otherwise). But a court can't strike it down, and order the government to perform searches, simply because it agrees that the policy puts some speakers at risk and thus deters their speech (since then some attendees could bring weapons to a speech and use them against the speaker).

As to the Second Amendment, even if you think the Amendment's prefatory clause should in some measure influence the scope of "the right of the people to keep and bear arms," that would at most mean that the government may impose certain extra gun controls that wouldn't have been allowed absent the prefatory clause. It doesn't mean that the government must impose particular gun controls.