The Volokh Conspiracy
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Mich. S. Ct. Declines to Review Decision Upholding U. Michigan Gun Ban
The case is Wade v. Univ. of Mich.; as is common for such denials of review, the majority didn't offer a detailed opinion, but Justice David Viviano, joined by Justice Brian Zahra, dissented:
In 2001, the University adopted Article X, which bans the possession of firearms on its campus or "any property owned, leased or otherwise controlled" by the University. That prohibition applies to all persons regardless of whether they possess a concealed-carry permit. Plaintiff unsuccessfully applied for a waiver under Article X. The record indicates that plaintiff does not work, reside, or study at the University and has a concealed-carry permit….
[T]he Court of Appeals disregarded the analysis required by the United States Supreme Court for Second Amendment disputes and invented a confusing four-factor test that bears almost no resemblance to the Supreme Court's test. On remand, the Court of Appeals set forth the following factors for resolving Second Amendment challenges:
1) Courts must first consider whether the Second Amendment presumptively protects the conduct at issue. If not, the inquiry ends and the regulation does not violate the Second Amendment.
2) If the conduct at issue is presumptively protected, courts must then consider whether the regulation at issue involves a traditional "sensitive place." If so, then it is settled that a prohibition on arms carrying is consistent with the Second Amendment.
3) If the regulation does not involve a traditional "sensitive place," courts can use historical analogies to determine whether the regulation prohibits the carry of firearms in a new and analogous "sensitive place." If the regulation involves a new "sensitive place," then the regulation does not violate the Second Amendment.
4) If the regulation does not involve a sensitive place, then courts must consider whether the government has demonstrated that the regulation is consistent with this Nation's historical tradition of firearms regulations. This inquiry will often involve reasoning by analogy to consider whether regulations are relevantly similar under the Second Amendment. If the case involves "unprecedented societal concerns or dramatic technological changes," then a "more nuanced approach" may be required.
The first factor accurately reflects the principle that the Second Amendment presumptively protects a citizen's right to keep and bear arms. On the basis of this factor, the Court of Appeals concluded that plaintiff is a "law-abiding, adult citizen" who enjoys Second Amendment protection….
Concerning the second factor, the Court of Appeals concluded that the University is a school and a sensitive place and that Article X is constitutional because regulations forbidding the carrying of firearms in sensitive places are consistent with the Second Amendment. The Court of Appeals also stated that courts may only employ historical analogies when a firearm regulation does not have a direct historical precedent….
In Heller, the Supreme Court stated in dicta that its holding did not call into question "longstanding" laws that forbid "the carrying of firearms in sensitive places such as schools and government buildings …." In Bruen, the Supreme Court expressly declined to "comprehensively define 'sensitive places,'" although, interestingly, it rejected an approach that would extend the concept across large areas, such as the island of Manhattan. Arguably, the Court of Appeals' conclusion that the entire campus of the University of Michigan—spanning one-tenth of Ann Arbor—does what Bruen rejected and extends sensitive places across large swaths of territory….
In any event, Bruen makes it clear that sensitive places are those locations where firearms have been historically regulated. This conclusion reflects Bruen's general text-and-history approach to Second Amendment rights, under which courts must "examine any historical analogues of the modern regulation to determine how these types of regulations were viewed." … The Court did not exempt sensitive places from this historical approach. Rather, in Bruen, it described sensitive places as those locations where "'longstanding' 'laws forbidding the carrying of firearms'" existed. Put differently, a sensitive place is one in which firearms have historically been forbidden….
Yet the Court of Appeals tried to take a shortcut here. As can be seen from its multifactor test, the Court suggested that any historical analysis is unnecessary if a location is a sensitive place. This completely ignores that sensitive places are those locations with historical regulations. And in applying its newly fabricated test, the Court once again offered little more than an analysis of whether universities are schools, this time relying solely on modern definitions of schools…. As I noted before, my own review of historical gun restrictions on campuses and the secondary literature on the topic has not uncovered any tradition of complete firearm bans, only partial and targeted prohibitions, e.g., regulations on the discharge of firearms on campus.
It seems doubtful that after establishing a text-and-tradition approach to the Second Amendment, the Supreme Court would uphold total bans on firearms in locations that historically never had such prohibitions. Indeed, such a regulation would not be supported by text or tradition, so what reasoning could support it? A rationale grounded in the pragmatic balancing of interests was rejected in Bruen, as discussed above. I therefore struggle to see how the Court of Appeals' framework here, which eschews text and tradition altogether, can be justified under the Supreme Court's precedent.
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Most courts that have recently addressed these regulations have recognized that they do not support a total prohibition of firearms on university campuses. See United States v Metcalf (D. Mont. 2024) ("The Court is unconvinced by evidence of these early university bans because they were not regulations on carrying weapons in "sensitive places." Rather, they banned certain persons—students—from carrying weapons. The University of Georgia restriction banned students from carrying weapons anywhere. Neither the University of Virginia ban nor the University of North Carolina ban applied to faculty members or to members of the community, so they, too, only banned certain persons from carrying weapons."); United States v Allam (E.D. Tex. 2023) ("In any event, although these enactments occurred close to our Nation's founding, the prohibitions applied to students only, and, thus, the university campus 'was not a place where arms were forbidden to responsible adults,' much less within 1,000 feet of campus…. Moreover, three university regulations that applied only to students cannot be said to be representative of our Nation's tradition of firearms regulation."). The Court of Appeals relied on, among other things, two recent out-of-state federal cases for the proposition that a university is a college campus. United States v Power (D. Md. 2023); United States v Robertson (D. Md. 2023). These courts were less thorough in their analysis, however. Neither case addressed college or university campuses; instead, both examined a nonschool government location. While the court in both cases did analogize the location to universities, the court addressed only three historical regulations, none of which totally prohibited firearms on campus. In a third case cited by the Court of Appeals, the decision upheld a prohibition on carrying concealed weapons, not a total ban; in doing so, the court cited various additional historical examples of limited prohibitions on student possession of firearms and the carrying of firearms in school rooms, not across entire campuses. Antonyuk v Hochul (N.D.N.Y. 2022). Tellingly, too, all these decisions at least attempted to do the historical analysis that the Court of Appeals said was unnecessary here.}
Here's an excerpt from the Court of Appeals' opinion:
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 (Va. 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 (D. Md. 2023); United States v Robertson (D. Md. 2023) ("[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 (N.D.N.Y. 2022), 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….
