Michigan S. Ct. Will Decide Whether the Second Amendment Applies at Public Universities


The decision below (Wade v. University of Michigan) upheld the University of Michigan's general ban on gun possession on university property; Friday, the Michigan Supreme Court agreed to hear the case:

By order of May 22, 2019, the application for leave to appeal the June 6, 2017 judgment of the Court of Appeals was held in abeyance pending the [U.S. Supreme Court] decision in New York State Rifle & Pistol Ass'n, Inc v City of New York (2020)…. [That] case having been decided on May 29, 2020, the application is again considered, and it is GRANTED.

The parties shall address: (1) whether the two-part analysis applied by the Court of Appeals is consistent with District of Columbia v Heller (2008), and McDonald v Chicago (2010), cf. Rogers v Grewal (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.

Persons or groups interested in the determination of the issues presented in this case may move the Court for permission to file briefs amicus curiae.

NEXT: Lawsuit Over Schools' Restriction on Pro-Gun Shirts Can Go Forward

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  1. NB: the latest election flipped the Michigan Supreme Court from a 4-3 Republican to 4-3 Democratic majority.

    Presumably, the case will not be decided by the current justices.

    1. Amazing! Now we decide what is legal an what is not based on the political affiliation of those making the decisions.

      Nice rule of law you had there.

      1. The rule of law is and always has been a myth.

        1. It’s been an aspiration, like objectivity. Something people can achieve, but won’t with certainty achieve.

          And like any other aspiration, not everybody shares it.

          1. It’s an impossibility.

  2. If it’s ok to ban what is upheld by the Second Amendment, can free speech, freedom of the press, religious freedom, and other rights be far behind? How about trial to a jury? — Oh wait, Title IX seems to have already eliminated that.

    At least it leaves a place to quarter troops. I hear deans have some pretty nice university housing.

    1. Freedom of speech? On campus? Where’ve you been the last few years? That ship has long since sailed.
      But you’re right: those who are willing to disregard the Second Amendment would also — if they think they can get away with it — disregard the First, Fourth, Fifth, etc.

  3. Prof. Volokh, what’s your take on this case?

    Also. . .

    Section 5. Violation Penalty
    A person who violates this Article X is guilty of a misdemeanor, and upon conviction, punishable by imprisonment for not less than ten (10) days and no more than sixty (60) days, or by a fine of not more than fifty dollars ($50.00) or both.

    Does this mean the university has its own court and jail?!?

    1. That’s a state statute.

      1. Curses! What I meant to write is that’s a state statute inasmuch as the state gave the university authority to write rules that then have the force of state law. So the state’s courts and jails are used.

        Think about a city or county ordinance: the state gives some lawmaking power to cities and counties.

        1. But cities and counties are units of government, with elected officers. If the university counts as a unit of government, when do they hold their elections?

          1. The Regents of the University of Michigan, Trustees of Michigan State University, and Governors of Wayne State University are all statewide elective positions.

  4. The quick shoutout to a Thomas dissent made it unnecessary to look up whether the Supreme Court of Michigan is still a clinger court.

    Carry on, clingers . . . But only so far as your betters allow.

    1. I dislike the way you talk about people who disagree with you.

      But I agree, citing to the separate opinion of Thomas, which is not the law, is not really a smart thing to do in an order granting review.

      1. The Rev thinks (and says!) that he’s better than (most) other people. Which means he can talk down to them, insult them, undermine their democratic choices, steal their votes, etc.

      2. Dilan Esper: Why not “a smart thing to do”? These are judges, who are entitled to their own views. They may agree with Justice Thomas (and Justice Kavanaugh, who joined Justice Thomas’s opinion on this point); or they may just want to signal to the parties that the parties should confront those arguments. They certainly aren’t bound by Justice Thomas’s opinion, but neither are they bound by the contrary (since the denial of certiorari in Rogers v. Grewal wasn’t a binding precedent).

        As a lawyer, I’d be reluctant to rely too obviously on a dissent from denial of certiorari. But why should judges be reluctant to do so?

  5. It’s a cookbook! (I mean infringement)

    Just for the record, in the dark ages when I was in college, the state law allowing open carry was observed. On a Saturday, the Rifle and Pistol Club would head across campus wearing/carrying as many a four firearms. After stopping to buy 2,000 rounds of .22LR from the local Western Auto, we went out and shoot up all of that and the hundreds of rounds ammo we had hand loaded in our dorm rooms the night before. In my four years there, no one was shot on campus. Actually, no one even fainted from shock.
    We even had free speech everywhere on campus and in town.
    Good Times.

  6. The first two issues to be briefed are the usual ones, but the thrid is most-interesting. It’s been a few decades since I visited Ann Arbor so my recollection is a bit vague; plus, there have probably been expansions since then.

    But it is true that U of M covers an incredibly-broad geography there. The prohibition, if strictly enforced, might infringe the RKBA in almost the entire City. (It would be similar to the prohibition of carrying firearms within so many feet of a school campus, even within a motor vehicle, when there is no other direct route of transit except through the prohibited perimeter.)

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