The Volokh Conspiracy

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Montana Constitution Lets Board of Regents Regulate Gun Carrying at Universities, Independent of Legislature


Today's decision of the Montana Supreme Court in Bd. of Regents v. State, written by Justice Laurie McKinnon, holds that

  1. the Montana Constitution gives the Montana Board of Regents of Higher Education authority over the Montana University System, independent in many ways of the Legislature, and
  2. it was therefore unconstitutional for the Legislature (in a statute called HB 102) to preempt the Board's general ban on gun carrying on Montana public university campuses (Board Policy 1006):

The intent of the Framers controls our interpretation of a constitutional provision. We must discern the Framers' intent from the plain meaning of the language used and may resort to extrinsic aids only if the express language is vague or ambiguous. Even in the context of clear and unambiguous language, however, we determine constitutional intent not only from the plain language, but also by considering the circumstances under which the Constitution was drafted, the nature of the subject matter the Framers faced, and the objective they sought to achieve….

The 1972 Constitution removed the [1889 Constitution's] language subjecting the Board's powers and duties to legislative control and instead vested the Board with the "full power, responsibility, and authority to supervise, coordinate, manage and control the [MUS] and … supervise and coordinate other public educational institutions assigned by law." By the plain language of Mont. Const. art. X, § 9, the Board retains full independence over the MUS. However, the Board remains subject to the legislative powers to appropriate and audit, legislatively determined terms of office, and the oversight of additional educational institutions as prescribed by law. Legislative oversight likewise remained the case for the constitutionally created Board of Public Education.

The 1972 Constitutional Convention's debate over Mont. Const. art. X, § 9, further helps determine the Framers' intent regarding the Board's constitutional authority. The debate reveals 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. Indeed, the Framers recognized the importance of independent and unfettered academic freedom:

[A] more subtle kind of coercion has made its appearance, and it is of the sort which is likely to become an even greater threat to the integrity of higher education in the future. This is the growing power of the centralized, bureaucratic state. Without overtly intending to curtail freedoms, the modern state has absorbed an increasing amount of power and control in the name of efficiency. [Montana Constitutional Convention, Committee Proposals.]

The contemporary understanding at the time of the Constitution's ratification was "that the convention intended that the [Board] should be a quasi-independent state department subject only to indirect legislative control through appropriation, audit, confirmation of gubernatorial appointments and assignment of other educational institutions for their supervision." …

The State asserts the Board's constitutional authority is limited to academic, financial, and administrative matters and that HB 102 revoked any previously delegated power to regulate firearms…. [But t]he Board and the Legislature derive their respective power from the same authority—the Montana Constitution. The Constitution defines the powers of each and imposes limitations upon those powers. Absent language to the contrary, a direct power conferred upon one necessarily excludes the existence of such power in the other. This fundamental premise lies at the very root of the constitutional system of government.

The Board, and MUS, are not mentioned in Mont. Const. art. V, which imparts the legislative power, and corresponding limitations, upon the Legislature. However, nor is the Legislature mentioned in Mont. Const. art. X, § 9(2), which entrusts the Board with the full governance and control of the MUS. No reasonable rule of construction permits either body to encroach upon or exercise the powers constitutionally conferred upon the other.

Application of HB 102 to MUS, and the Board, would give the Legislature control and supervision over MUS campuses and render the Board ministerial officers with no true authority other than to effectuate the Legislature's will. Such application directly contradicts the constitutionally granted powers of the Board and undermines the Board's ability to govern the MUS, while expanding the Legislature's power in contravention of the express constitutional language of Mont. Const. art. X, § 9(2). Montana's Constitution serves as a limitation on the Legislature, not a grant of power. Exercise of the legislative power to undermine the constitutional powers of the Board cannot stand.

The State … argue[s] the Board's authority remains limited to academic, administrative, and financial matters concerning the MUS. The Board's constitutional authority includes those matters. However, contrary to the State's argument, Board Policy 1006 relates directly to the academic and administrative operations of the MUS. Applying, as it does, solely to individuals while they are on MUS campuses or properties, Board Policy 1006 reflects the Board's judgment on an issue undoubtedly within the scope of its constitutional authority under Mont. Const. art. X, § 9(2)(a)—the appropriate means by which to maintain a safe, secure, and orderly educational environment in its classrooms and on its campuses and properties.

While the mission of the MUS remains teaching, research, and public service, the Board has determined through Board Policy 1006 that the presence of firearms on MUS campuses presents an unacceptable risk to a safe and secure educational environment, thus undermining these goals. The Board manages instructional facilities, laboratories, recreational facilities, student residential housing, food services, and a host of other operations. Students, faculty, and support personnel rely on the Board to assess security risks and make decisions that will enhance the safety, security, and stability of the educational environment as a whole, consistent with the MUS mission. Thus, maintaining a safe and secure educational environment falls squarely within the Board's constitutional authority under Mont. Const. art. X, § 9(2)(a), affording the Board the power to protect MUS campuses so that the educational and administrative goals of the MUS are realized.

Board Policy 1006 arises from this necessity and reflects the Board's assessment that firearms threaten the safety and security of the educational environment it strives to obtain. In addition to limiting the carrying of firearms on MUS campuses, Board Policy 1006 delegates the control and direction of campus police and security departments to the presidents of each MUS campus. It is particularly germane and necessary to the Board's constitutional authority that it can manage MUS campuses by implementing policies it believes will minimize the loss of life and thereby strengthen its educational environment. While the mission of the Board is education, the reality is that campus safety and security is an integral responsibility of the Board and its mission….

Conversely, with limited exceptions, HB 102 prohibits the Board from regulating the possession, transportation, or storage of firearms on MUS campuses. By expressly proscribing the Board from regulating firearms on MUS campuses, HB 102 functions as a legislative directive of MUS policy and undermines the management and control exercised by the Board to set its own policies and determine its own priorities. The Board, not the Legislature, is constitutionally vested with full authority to determine the priorities of the MUS. See Judge, 168 Mont. at 454, 543 P.2d at 1335. HB 102 sought to undermine this constitutional authority and thus cannot be applied to the Board and MUS properties.

Our holding does not, as the State contends, elevate the Board and MUS to a fourth branch of government or provide the Board veto power over state laws it disagrees with. Rather, we conclude that, where legislative action infringes upon the constitutionally granted powers of the Board to supervise, coordinate, manage, and control the MUS, the legislative power must yield….

The Board is constitutionally vested with full responsibility to supervise, coordinate, manage, and control the MUS and its properties. The regulation of firearms on MUS campuses falls squarely within this authority….

Naturally, this is a matter of state law, and would only be persuasive authority in states that have similar state constitutional provisions. The court didn't discuss the Second Amendment or the Montana Constitution's right to bear arms provision, presumably because the parties didn't discuss them; that Montana Constitution provision reads,

The right of any person to keep or bear arms in defense of his own home, person, and property, or in aid of the civil power when thereto legally summoned, shall not be called in question, but nothing herein contained shall be held to permit the carrying of concealed weapons.