From Wade c. Univ. from michigan, decided yesterday by the Michigan Court of Appeals (Justices Mark Cavanagh and Deborah Servitto); the ban covered all university property, which I assume includes dorms and open spaces:
In Brown, the Court said it was “settled” that the carrying of weapons could be prohibited under the Second Amendment in places that are “sensitive places”. The Court explained that although historical records showed relatively few “sensitive places” from the 18th and 19th centuries, such as legislatures, polling stations, and courthouses, there was no dispute regarding the legality of gun bans in sensitive places such as schools and government buildings. Court statements indicate that while 18th- and 19th-century “sensitive places” were limited to legislatures, polling places, and courthouses, laws banning guns in schools and other government buildings are nonetheless consistent with the Second Amendment. Thus, if the University is a school or a government building, then Article X does not violate the Second Amendment….
Samuel Johnson’s dictionary of 1773 defines ‘school’, in part, as: ‘A house of discipline and instruction (,)’ and ‘(a) place of literary education; a university”. He defines “university” as “(a) school, where all the arts and faculties are taught and studied”. Thus, given either period, the term “school” included universities.
In particular, the reference to “schools” as sensitive places was made for the first time by Judge Scalia in Heller. In discussing the “long-standing” tradition of laws prohibiting firearms in sensitive places such as “schools and government buildings”, Justice Scalia did not define the term “school”, nor quote or invoke any authority. Since the term “school” is not found in the Second Amendment, but was first used by Justice Scalia, it is unclear whether 1791 or 1868 are the correct time periods to determine the meaning of this term as used in Heller. Nevertheless, the ordinary meaning of the term “school” when Justice Scalia used the term in 2008 also includes universities….
Other courts have concluded that universities are schools and therefore “sensitive places”. See DiGiacinto v President and Visitors of George Mason University, 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 vs. Powerunpublished notice of brief of the United States District Court for the District of Maryland, rendered January 9, 2023 (Case No. 20-po-331-GLS), 2023 WL 131050, and United States vs. Robertson, unpublished brief opinion of the United States District Court for the District of Maryland, rendered January 9, 2023 (case no. 22-po-867-GLS), 2023 WL 131051, *12 (“(T)he Court determines that regulation centered on a “college campus” falls within “schools” and falls within the sensitive premises doctrine.”). In Power And Robertson, the court upheld National Institute of Health (NIH) regulations prohibiting firearms on its campus because the NIH is a sensitive place. Thus, the impugned regulation did not violate the Second Amendment. The court explained that Brown 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 under these two examples”. Finally, in Antonyuk vs. Hochul___ F Supp 3d ___, ___ (ND NY, 2022) (No. 1:22-CV-0986 (GTS/CFH)), 2022 WL 5239895, *17, court upheld New York restriction on concealed carry in colleges and universities….
Along the same lines, the plaintiff suggests that while “specific parts” of the university campus may be considered “sensitive areas”, the entire campus is not a “sensitive area”. The plaintiff’s suggestion is untenable as it would require certain “areas” of the University to be segregated from other areas of the University, and other “sensitive areas” such as courthouses should also be partitioned off. More importantly, the applicant provides no support for partitioning “hot spots” and no such support can be found in Heller Or Brownwhich used the terms “schools” and “government buildings” broadly….
We recognize that the parties, as well as the amici, make many political arguments both for and against Article X. In short, the University argues that in addition to public safety concerns, the presence of firearms defeats its important purposes 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 that learning is hindered if firearms are allowed on campus; and the University would be an exception among colleges and universities if its ordinance were rescinded. Brady argues that Article X protects speech and the free exchange of ideas and promotes the University’s primary educational goals. The Giffords similarly argue that guns on campus chill speech, impede learning and pose unique security risks. Moreover, there is no evidence that the presence of firearms would reduce mass shootings.
The plaintiff, however, argues that firearms increase public safety. He further argues that concerns about violence, suicide, and alcohol abuse may concern the students, but not him, and the free flow of information is not a concern at the scene of his proposed conduct. The Argentine government also argues that Article X is far too broad, potentially affecting over 88,000 people and effectively operating as a city-wide ban, which is unconscionable.
Obviously, the effectiveness of gun bans as a public safety measure is open to debate. However, because the University is a school, and therefore a sensitive place, it is up to the decision-maker – the University in this case – to determine how to respond to this public safety problem….
