The Volokh Conspiracy
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From Wade v. Univ. of Michigan, decided yesterday by the Michigan Court of Appeals (Judges Mark Cavanagh and Deborah Servitto); the ban covered all university property, which I take it includes dorms and open spaces:
In Bruen, the Court stated that it was "settled" that arms carrying could be prohibited consistent with the Second Amendment in locations that are "sensitive places." The Court explained that, although the historical record showed relatively few 18th and 19th century "sensitive places," such as legislative assemblies, polling places, and courthouses, there was no dispute regarding the lawfulness of prohibitions on carrying firearms in sensitive places such as schools and government buildings. The Court's statements indicate that, even though 18th and 19th century "sensitive places" were limited to legislative assemblies, polling places, and courthouses, laws prohibiting firearms in schools and other government buildings are nonetheless consistent with the Second Amendment. Thus, if the University is a school or government building, then Article X does not violate the Second Amendment….
Samuel Johnson's dictionary from 1773 defines "school," in part, as: "A house of discipline and instruction[,]" and "[a] place of literary education; an university." It defines "university" as "[a] school, where all the arts and faculties are taught and studied." Thus, considering either time period, the term "school" included universities.
Notably, the reference to "schools" being sensitive places was first made by Justice Scalia in Heller. In discussing the "longstanding" tradition of laws forbidding firearms in sensitive places such as "schools and government buildings," Justice Scalia did not define the term "school," nor did he cite or rely on any authority. Given that the term "school" is not found in the Second Amendment, but was first used by Justice Scalia, it is not clear that either 1791 or 1868 are the correct time periods to determine the meaning of that term as used in Heller. Nonetheless, the plain meaning of "school" when Justice Scalia used the term in 2008 similarly includes universities….
Other courts have concluded that universities are schools, and thus, "sensitive places." See DiGiacinto v Rector & Visitors of George Mason Univ, 281 Va 127, 136; 704 SE2d 365 (2011) ("The fact that [George Mason University (GMU)] is a school and that its buildings are owned by the government indicates that GMU is a 'sensitive place.' "). See also United States v Power, unpublished memorandum opinion of the United States District Court for the District of Maryland, issued January 9, 2023 (Case No. 20-po-331-GLS), 2023 WL 131050, and United States v Robertson, unpublished memorandum opinion of the United States District Court for the District of Maryland, issued January 9, 2023 (Case No. 22-po-867-GLS), 2023 WL 131051, *12 ("[T]he Court determines that a regulation centered on a 'college campus' falls under 'schools' and within the sensitive places doctrine."). In Power and Robertson, the court upheld the National Institute of Health (NIH)'s regulation banning firearms on its campus because the NIH is a sensitive place. Thus, the challenged regulation did not violate the Second Amendment. The court explained that Bruen never said only "elementary schools" or "middle schools," and the terms "schools and government buildings are presented as broadly as possible, allowing the reader to consider all possible subtypes that fall within those two examples." Finally, in Antonyuk v Hochul, ___ F Supp 3d ___, ___ (ND NY, 2022) (No. 1:22-CV-0986 (GTS/CFH)), 2022 WL 5239895, *17, the court upheld a New York restriction on concealed carry at colleges and universities….
Relatedly, plaintiff suggests that while "some specific parts" of the University's campus may be considered "sensitive areas," the entire campus is not a "sensitive area." Plaintiff's suggestion is untenable because it would require that certain "areas" of the University be partitioned off from other areas of the University, and other "sensitive places" like courthouses would likewise have to be partitioned. More importantly, plaintiff provides no support for partitioning "sensitive areas" and no such support can be found in Heller or Bruen, which used the term "schools" and "government buildings" broadly….
We acknowledge that the parties, as well as the amici, present numerous policy arguments both in support of and against Article X. In brief, the University argues that, in addition to public safety concerns, the presence of firearms works against its important goals of protecting First Amendment freedoms and the free flow of information. The Michigan Attorney General argues that: courts should not interfere with state and local decisions; university students believe learning is hampered if firearms are permitted on campus; and the University would be an outlier among colleges and universities if its ordinance were struck down. Brady argues that Article X protects speech and the free exchange of ideas and furthers the University's core educational goals. Giffords similarly argue that guns on campuses chill speech, impede learning, and pose unique safety risks. Further, there is no evidence that the presence of guns would decrease mass shootings.
Plaintiff, however, argues that guns increase public safety. He further argues that the concerns regarding violence, suicide, and alcohol abuse may relate to students, but not to him, and the free flow of information is not a concern at the places of his proposed conduct. GOA similarly argues that Article X is far too broad, potentially affecting more than 88,000 people and effectively operating as a city-wide ban, which is impermissible.
Clearly, the efficacy of gun bans as a public safety measure is a matter of debate. However, because the University is a school, and thus a sensitive place, it is up to the policy-maker—the University in this case—to determine how to address that public safety concern….