The Constitutional Right to Carry Firearms on Campus

William & Mary Law Review William & Mary Law Review

Volume

63 (2021-2022)

Issue 3

Article 7

2-2022

The Constitutional Right to Carry Firearms on Campus The Constitutional Right to Carry Firearms on Campus

Jared A. Tuck

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Part of the Constitutional Law Commons, Education Law Commons, and the Second Amendment

Commons

Repository Citation Repository Citation

Jared A. Tuck,

The Constitutional Right to Carry Firearms on Campus

, 63 Wm. & Mary L. Rev.

1047 (2022), https://scholarship.law.wm.edu/wmlr/vol63/iss3/7

Repository.

https://scholarship.law.wm.edu/wmlr

THE CONSTITUTIONAL RIGHT TO CARRY FIREARMS ON

CAMPUS

ABLE OF CONTENTS

INTRODUCTION ..................................... 1048

I. I

NTERPRETING THE SECOND AMENDMENT ............... 1050

A. The Seminal Cases: Heller and McDonald........... 1050

B. Public Carry: The “Circuit Split” .................. 1053

1. Circuits Declaring an Individual Right to

Public Carry ................................. 1053

2. Circuits Assuming an Individual Right to

Public Carry ................................. 1054

II.

HE CONSTITUTIONAL RIGHT TO CARRY FIREARMS ON

CAMPUS ........................................ 1056

A. Heller Did Not Intend “Schools” to Include

College Campuses .............................. 1056

B. Public Universities Are Not “Sensitive Places”........ 1058

1. Heller and the Home as a Non-Sensitive Place...... 1059

2. First Amendment Rights ....................... 1061

C. Federal Case Law Suggests Absolute Gun Bans on

Campus Are Unconstitutional ..................... 1064

1. The Tiers of Scrutiny Do Not Apply to

Absolute Bans ................................ 1065

2. Absolute Firearms Bans on Campus Fail Heller’s

Historical Method............................. 1068

III.

OW CAN STATES AND PUBLIC UNIVERSITIES REGULATE

FIREARMS? ..................................... 1072

A. Likely Permissible Regulations Under Heller ........ 1072

B. Likely Permissible Regulations Under Intermediate

Scrutiny ...................................... 1073

ONCLUSION ....................................... 1076

1047

1048 WILLIAM & MARY LAW REVIEW [Vol. 63:1047

NTRODUCTION

In 2007, a man used a firearm to claim thirty-three lives on the

campus of Virginia Tech, a public university.

The next year, the

Supreme Court of the United States recognized, for the first time in

history, that individuals have the fundamental right under the Sec-

ond Amendment to keep and bear arms within their homes for the

purpose of self-defense.

Since 2008, federal circuit courts have ei-

ther assumed or interpreted the Supreme Court’s decision to extend

to some sort of individual right to carry firearms in public.

For over

a decade, the Supreme Court refused to weigh in on public carry;

however, the Court recently granted certiorari in New York State

Rifle & Pistol Ass’n v. Bruen to resolve this question.

Nevertheless,

the public carry issue in Bruen does not specifically deal with car-

rying firearms on college campuses.

This begs the question, do individuals have the fundamental right

under the Second Amendment to carry firearms on the campus of a

public university? Additionally, can a public university totally ban

firearms on its campus without impeding on the constitutional right

to keep and bear arms protected by the Second Amendment? This

Note will argue that individuals have a narrow, but constitutionally

guaranteed, right to carry firearms on the campus of a public

1. Christine Hauser & Anahad O’Connor, Virginia Tech Shooting Leaves 33 Dead, N.Y.

IMES (Apr. 16, 2007), https://www.nytimes.com/2007/04/16/us/16cnd-shooting.html [https://

perma.cc/V8DN-LQTH].

2. See District of Columbia v. Heller, 554 U.S. 570, 635 (2008).

3. See, e.g., Drake v. Filko, 724 F.3d 426, 431 (3d Cir. 2013) (assuming that the Second

Amendment protects the right to carry in public).

4. See Rogers v. Grewal, 140 S. Ct. 1865, 1865 (2020) (denying certiorari on the public

carry issue).

5. N.Y. State Rifle & Pistol Ass’n v. Corlett, 141 S. Ct. 2566, 2566 (2021) (Respondent’s

name changed to Bruen after Court granted the petition); Scott Neuman & Nina Totenberg,

Supreme Court to Take up 1st Major Gun Rights Case in More Than a Decade, NPR (Apr. 26,

2021, 5:03 PM), https://www.npr.org/2021/04/26/990846329/supreme-court-to-take-up-first-

major-gun-rights-case-in-more-than-a-decade [https://perma.cc/LA6W-ZCTL].

6. See Corlett, 141 S. Ct. at 2566 (granting certiorari to answer the narrow question of

“[w]hether the State’s denial of petitioners’ applications for concealed-carry licenses for self-

defense violated the Second Amendment”); N.Y. State Rifle & Pistol Ass’n v. Beach, 818 F.

App’x 99, 100 (2d Cir. 2020), cert. granted sub nom. N.Y. State Rifle & Pistol Ass’n v. Corlett,

141 S. Ct. 2566 (2021).

2022] FIREARMS ON CAMPUS 1049

university. Therefore, it is beyond the power of states and public

universities to totally ban firearms from campus premises.

Part I is the backbone of this Note. Part I provides an overview of

the Second Amendment and the federal case law interpreting it.

This Part discusses the two most influential Supreme Court deci-

sions on the Second Amendment: District of Columbia v. Heller and

McDonald v. City of Chicago.

Determining the scope of the Second

Amendment necessarily requires an examination of these two cases.

The Heller opinion, although its holding is very narrow, is the most

detailed guidance lower courts have when determining the Second

Amendment’s scope.

It is beyond the purview of this Note to

examine whether Heller and its progeny were correctly decided. Part

I will also discuss the various decisions by the federal circuit courts

on the issue of carrying firearms in public and why those decisions

support a fundamental right to carry in public.

Part II is the heart of this Note. Part II argues that individuals

have a slim constitutional right to carry firearms on the campus of

a public university. Part II then discusses why the Supreme Court

in Heller did not intend public universities to fall within its defi-

nition of “sensitive places,” although the Court specifically listed

“schools and government buildings” as examples.

Part II relies on

Heller’s text and reasoning to support this contention. This Part also

uses dictionaries from around the time Heller was decided to parse

the meaning of Heller’s dicta. Both Heller’s historical approach and

First Amendment doctrine support the contention that public uni-

versities are not sensitive places. Heller and subsequent federal case

law interpreting the Second Amendment demonstrate why absolute

bans on campus carry fail constitutional muster. Consequently,

individuals do not necessarily give up their constitutional right to

keep and bear arms simply because they choose to step foot on the

campus of a public university.

Part III is the mind of this Note. Part III describes the broad

power of regulation that states, and universities, may enjoy without

7. District of Columbia v. Heller, 554 U.S. 570 (2008); McDonald v. City of Chicago, 561

U.S. 742 (2010); see, e.g., Gould v. Morgan, 907 F.3d 659, 670 (1st Cir. 2018) (“The Supreme

court’s seminal decision in Heller guides our voyage.”).

8. However, the Court is likely to provide additional guidance this term. See Corlett, 141

S. Ct. at 2566.

9. See Heller, 554 U.S. at 626-27.

1050 WILLIAM & MARY LAW REVIEW [Vol. 63:1047

infringing on the individual right to carry firearms on campus. The

purpose of Part III is not to describe every permissible way in which

states and public universities may regulate firearms on campus.

Rather, the goal of Part III is to illustrate that the implied constitu-

tional right to carry firearms on the campus of a public university

is extremely narrow. Instead of attempting to hypothetically deter-

mine constitutionally permissible regulations on firearms, Part III

points to firearms regulations that federal courts have upheld as

constitutional. Part III will also analyze and expand on those deci-

sions to provide helpful insight for states and public universities

when trying to regulate firearms on campus. This Note provides

counterarguments throughout, as many scholars have argued that

states and public universities have the power to totally prohibit any

and all firearms on campus.

NTERPRETING THE SECOND AMENDMENT

The Second Amendment reads, “[a] well regulated Militia, being

necessary to the security of a free State, the right of the people to

keep and bear Arms, shall not be infringed.”

Although the Second

Amendment is composed of only one sentence, its meaning and

scope are not straightforward.

Its language is broad and leaves a

reader with more questions than answers.

Thus, one must turn to

the Supreme Court of the United States for guidance on the mean-

ing of the Second Amendment.

A. The Seminal Cases: Heller and McDonald

The Court’s most monumental decision interpreting the Second

Amendment is District of Columbia v. Heller.

This decision laid

the foundation for contemporary Second Amendment law.

Again,

the purpose of this Note is not to decide whether the Court in Heller

reached the correct decision. Instead, this Note will accept the

10. U.S. CONST. amend. II.

11. See id.

12. See id.

13. 554 U.S. 570 (2008).

14. See id.

2022] FIREARMS ON CAMPUS 1051

Heller decision as the seminal Supreme Court case interpreting the

Second Amendment.

Unlike Second Amendment law, the facts of Heller were fairly

simple. Dick Heller was a security officer who frequently carried a

firearm, specifically a handgun, while performing his job-related

duties.

However, D.C. law generally prohibited individuals from

possessing a pistol within their homes.

Heller applied for a special

permit to allow him to carry a handgun within his home, but the

District of Columbia rejected his application.

Subsequently, Heller

sued and argued that the D.C. laws were unconstitutional under the

Second Amendment.

Heller’s case made it all the way up to the

Supreme Court.

Justice Scalia wrote the majority opinion, reaching the conclusion

that the D.C. laws forbidding Heller from carrying a pistol within

his home were unconstitutional under the Second Amendment.

interpret the Second Amendment, the Court split the provision into

two parts: (1) the prefatory clause, “[a] well regulated Militia, being

necessary to the security of a free State,” and (2) the operative

clause, “the right of the people to keep and bear Arms, shall not be

infringed.”

The Court said that the prefatory clause merely states

the purpose of the operative clause, and it does not limit the right

to one that is collective.

Therefore, the Court interpreted the

Second Amendment to protect an individual right “to keep and bear

arms.”

Two years after Heller, the Court took up the case of McDonald

v. City of Chicago.

Like the District of Columbia in Heller, Chicago

and one of its suburbs prohibited the possession of handguns with-

in one’s home.

The plaintiffs, wishing to possess such firearms,

15. Id. at 575.

16. Id. at 574-75.

17. Id. at 575.

18. Id. at 575-76.

19. Id. at 576.

20. Id. at 573, 635.

21. U.S.

ONST. amend. II; see Heller, 554 U.S. at 577.

22. Heller, 554 U.S. at 577-79. Collective rights are “rights that may be exercised only

through participation in some corporate body.” Id. at 579.

23. Id. at 595, 598.

24. 561 U.S. 742 (2010).

25. Id. at 749-50.

1052 WILLIAM & MARY LAW REVIEW [Vol. 63:1047

challenged the constitutionality of the pistol bans under both the

Second and Fourteenth Amendments.

The Court agreed with the

plaintiffs.

McDonald’s legal effect was to incorporate the individu-

al right recognized in Heller to the states through the Due Process

Clause of the Fourteenth Amendment.

It is important to note that Heller’s core holding was very nar-

row.

Heller only held that the Second Amendment guarantees a

fundamental individual right to carry a handgun, for the purpose of

self-defense, within one’s home.

However, Heller’s dicta provides

great insight into the scope of the Second Amendment. Specifically,

Justice Scalia wrote for the majority:

Although we do not undertake an exhaustive historical analysis

today of the full scope of the Second Amendment, nothing in our

opinion should be taken to cast doubt on longstanding prohibi-

tions on the possession of firearms by felons and the mentally ill,

or laws forbidding the carrying of firearms in sensitive places

such as schools and government buildings, or laws imposing

conditions and qualifications on the commercial sale of arms.

In a footnote to the sentence quoted above, the Court noted, “[w]e

identify these presumptively lawful regulatory measures only as

examples; our list does not purport to be exhaustive.”

However,

the Court failed to fully define “sensitive places.”

The Court

provided “schools and government buildings” as examples, but it is

unclear from the phrase itself whether public universities are

included.

26. See id. at 752.

27. See id. at 750, 791.

28. Id.

29. See James M. Manley, Defining the Second Amendment Right to Carry: Objective

Limits on a Fundamental Right, 14 T.M.

OOLEY J. PRAC.&CLINICAL L. 81, 87-88 (2012).

30. See McDonald, 561 U.S. at 791 (“In Heller, we held that the Second Amendment

protects the right to possess a handgun in the home for the purpose of self-defense.”).

31. District of Columbia v. Heller, 554 U.S. 570, 626-27 (2008).

32. Id. at 627 n.26.

33. See id. at 626.

34. See id.

2022] FIREARMS ON CAMPUS 1053

B. Public Carry: The “Circuit Split”

Since Heller, the federal circuit courts have struggled to deter-

mine whether the individual right guaranteed by the Second

Amendment extends outside the home, and what the scope of that

right is.

Scholars have noted a circuit split and have voiced their

opinions on the issue.

However, as discussed below, the circuit case

law after Heller strongly suggests that an individual constitutional

right to carry firearms in public exists.

1. Circuits Declaring an Individual Right to Public Carry

In 2012, the Seventh Circuit struck down Illinois laws that ef-

fectively prohibited the carrying of loaded firearms in public.

The

court was clear that the Second Amendment protects an individual

right to carry firearms outside the home.

Specifically, the majority

opined, “[t]he Supreme Court has decided that the amendment con-

fers a right to bear arms for self-defense, which is as important out-

side the home as inside.”

In 2017, the D.C. Circuit struck down a D.C. law that prevented

most residents of the District from carrying a gun in public.

The

law required applicants wishing to carry in public to demonstrate a

“good reason to fear injury” or “any other proper reason for carrying

a pistol.”

The D.C. Circuit read Heller and the Second Amendment

more broadly than the other circuits and held that “the individual

35. See Rogers v. Grewal, 140 S. Ct. 1865, 1868 (2020) (Thomas, J., dissenting from denial

of certiorari) (explaining that the circuits have reached different conclusions regarding the

right to carry in public).

36. See John C. Frazer, Home, Sweet Home? The Second Amendment and the Right to

Carry Firearms in Public, 4 R

EGENT J.L. & PUB.POL’Y 1, 1, 4-5, 22 (2012) (arguing that there

is an individual right to carry in public); Michael C. Dorf, Does Heller Protect a Right to Carry

Guns Outside the Home?, 59 S

YRACUSE L. REV. 225, 226, 229-30 (2008) (arguing that the

home/public line drawn in Heller is justified); Jackson Carter, Comment, Take Your Guns to

Town: Expanding the Scope of the Second Amendment Beyond the Home, 83 M

ISS. L.J. SUPRA

101, 103-04 (2014) (arguing that there is an individual right to carry a handgun in public for

self-defense).

37. Moore v. Madigan, 702 F.3d 933, 934, 942 (7th Cir. 2012).

38. See id. at 942.

39. Id.

40. Wrenn v. District of Columbia, 864 F.3d 650, 655, 666, 668 (D.C. Cir. 2017).

41. Id. at 655 (quoting D.C. Code § 22-4506(a)-(b) (2009)).

1054 WILLIAM & MARY LAW REVIEW [Vol. 63:1047

right to carry common firearms beyond the home for self-defense—

even in densely populated areas, even for those lacking special self-

defense needs—falls within the core of the Second Amendment’s

protections.”

2. Circuits Assuming an Individual Right to Public Carry

In 2011, the Fourth Circuit upheld a defendant’s criminal con-

viction for carrying a loaded pistol in a motor vehicle at a national

park.

The majority assumed that an individual right to carry fire-

arms in public exists by explaining that individual gun rights are

subject to more regulation in public.

If individual gun rights are

more limited in public, it follows that there are some individual gun

rights in public.

One judge wrote separately for part of the opinion,

explicitly declaring that individuals have the constitutional right

to bear arms in public.

In 2012, the Second Circuit upheld New York’s concealed carry

licensing requirement, which required individuals to show a “proper

cause” for carrying a concealed firearm in public.

Although the

court upheld New York’s “proper cause” requirement, the court did

not grant states the implicit power to completely prohibit the carry-

ing of firearms in public.

Rather, the court assumed, and implied,

that a constitutional right to carry in public exists by noting that

the individual right to carry outside the home is more limited than

the right to carry within the home.

In 2013, the Third Circuit upheld New Jersey’s requirement that

applicants wishing to carry firearms in public for self-defense show

42. See id. at 661.

43. United States v. Masciandaro, 638 F.3d 458, 459-60 (4th Cir. 2011).

44. See id. at 470. The Fourth Circuit also assumed that a right to carry in public exists

in a later case in which it upheld Maryland’s good reason requirement for carrying handguns.

See Woollard v. Gallagher, 712 F.3d 865, 876 (4th Cir. 2013).

45. See Masciandaro, 638 F.3d at 470.

46. Id. at 468 (Niemeyer, J., concurring) (“[I]t follows that the right extends to public ar-

eas beyond the home.”).

47. Kachalsky v. County of Westchester, 701 F.3d 81, 83, 101 (2d Cir. 2012).

48. See id. at 91 (“New York’s proper cause requirement does not operate as a complete

ban on the possession of handguns in public.”).

49. See id. at 89.

2022] FIREARMS ON CAMPUS 1055

a “justifiable need” for doing so.

Like the Second Circuit, the Third

Circuit assumed, without deciding, that the Second Amendment

guarantees an individual right to carry firearms in public.

In 2018,

the First Circuit followed suit by similarly assuming, without decid-

ing, that the Second Amendment implies an individual right to car-

ry firearms beyond the home.

In summary, the circuits weighing in on the issue of public carry

have either assumed or declared that some constitutional right to

carry firearms in public exists.

Notably, in 2016, the Ninth Circuit

refused to answer the question altogether.

The circuits have varied

in their holdings and the scrutiny they have applied to laws chal-

lenged under the Second Amendment,

but there is certainly a con-

sensus among the federal circuit courts that Heller and the Second

Amendment imply an individual right to carry in public.

However,

as the Second and Fourth Circuits have noted, the right to carry

firearms in public is not as robust as it is within one’s home.

Additionally, at least one current Supreme Court Justice has

expressly declared that there is an individual constitutional right

to carry firearms in public.

A second Justice has agreed with that

declaration.

Other Justices expressed their concerns with New

York’s “proper cause” law during oral arguments in New York State

Rifle & Pistol Ass’n v. Bruen.

Thus, in Bruen, the Supreme Court

50. Drake v. Filko, 724 F.3d 426, 428, 440 (3d Cir. 2013).

51. See id. at 431.

52. See Gould v. Morgan, 907 F.3d 659, 670 (1st Cir. 2018) (interpreting Heller to imply

a right to public carry).

53. See, e.g., Kachalsky, 701 F.3d at 89 (assuming individuals have some right to carry in

public); Wrenn v. District of Columbia, 864 F.3d 650, 661 (D.C. Cir. 2017) (declaring

individuals have some right to carry in public).

54. Peruta v. County of San Diego, 824 F.3d 919, 927 (9th Cir. 2016) (en banc) (“The

Second Amendment may or may not protect, to some degree, a right of a member of the

general public to carry firearms in public.”).

55. Compare Wrenn, 864 F.3d at 666 (declining to apply any tier of scrutiny), with Drake,

724 F.3d at 435 (applying intermediate scrutiny).

56. See, e.g., Kachalsky, 701 F.3d at 89.

57. See id.; United States v. Masciandaro, 638 F.3d 458, 470 (4th Cir. 2011).

58. See Rogers v. Grewal, 140 S. Ct. 1865, 1868 (2020) (Thomas, J., dissenting from denial

of certiorari) (“[T]he Second Amendment protects a right to public carry.”).

59. See Peruta v. California, 137 S. Ct. 1995, 1996, 1998 (2017) (Thomas, J., dissenting

from denial of certiorari) (Justice Gorsuch joining).

60. Ariane de Vogue, Supreme Court Seems Poised to Expand Second Amendment Rights

and Strike Down NY Handgun Law, CNN (Nov. 3, 2021, 2:44 PM), https://www.cnn.com/

1056 WILLIAM & MARY LAW REVIEW [Vol. 63:1047

will likely hold, consistent with this Note, that there is a constitu-

tional right to carry firearms in public.

II. THE CONSTITUTIONAL RIGHT TO CARRY FIREARMS ON CAMPUS

Heller and its progeny suggest there is a constitutional right to

generally carry firearms in public. Now it is important to determine

whether that right remains intact on public university campuses.

Heller specifically mentioned that certain “sensitive places” are sub-

ject to less Second Amendment protection,

but the Court did not

intend to include public universities as sensitive places. Instead,

Heller and subsequent cases support a narrow constitutional right

to carry firearms on public university campuses.

A. Heller Did Not Intend “Schools” to Include College Campuses

Given the widespread agreement that individuals have the right

to publicly carry firearms, it is important to determine whether that

right extends to carrying on public universities’ campuses. Remem-

ber, Heller’s dicta specifically stated that its opinion did not cast

doubt on “laws forbidding the carrying of firearms in sensitive

places such as schools and government buildings.”

One might

presume that this language forecloses any possibility of an individ-

ual right to carry firearms on campus because public universities

are “schools,” which Heller explicitly provided as an example of

sensitive places.

Some scholars agree with this simple analysis.

Shaundra Lewis takes this position by stating, “there is nothing in

[Heller] that indicates that the Court did not intend for colleges and

universities to be encompassed in the term ‘schools.’”

Although

compelling at first glance, this argument is misguided.

2021/11/03/politics/supreme-court-second-amendment-new-york-bruen/index.html [https://

perma.cc/L9X4-G4YL].

61. See id.

62. District of Columbia v. Heller, 554 U.S. 570, 626 (2008).

63. Id.

64. See id.

65. See Shaundra K. Lewis, Crossfire on Compulsory Campus Carry Laws: When the First

and Second Amendments Collide, 102 I

OWA L. REV. 2109, 2135 (2017).

66. Id.

2022] FIREARMS ON CAMPUS 1057

The Court in Heller did not intend public universities to be in-

cluded in the term schools. While public universities are definitely

schools in the broad sense, common usage of the word “schools” sup-

ports the contention that the term does not include college cam-

puses. Similar to the Court in Heller, which examined the intent

and meaning behind the Second Amendment’s text,

this Note uses

a comparable method to examine the meaning of Heller’s dicta.

Law dictionaries from around the time Heller was decided pro-

vide some guidance. Black’s Law Dictionary from 2004, four years

before the Heller decision, defined school as “[a]n institution of

learning and education, esp[ecially] for children.”

The 1999 and

2009 editions of the Black’s Law Dictionary identically mirror the

2004 edition’s definition of “school.”

Colleges are for adults, not

children. Elementary, middle, and high schools are for children.

Although in exceptional circumstances children may attend col-

lege,

this does not change the fact that public universities and

colleges are largely composed of adults.

Therefore, these dictionary

definitions support the contention that the Court in Heller intended

the word schools to encompass only elementary, middle, and high

school institutions.

Joan Miller takes this same position and

indicates that arguing otherwise would be onerous.

A second

scholar writing on campus carry interpreted the Heller opinion to

deem “pre-K-12 schools” as sensitive places.

67. See Heller, 554 U.S. at 576-98.

68. See School, B

LACK’S LAW DICTIONARY (8th ed. 2004).

69. Compare id., with School, B

LACK’SLAW DICTIONARY (9th ed. 2009) [hereinafter School

2009], and School, B

LACK’S LAW DICTIONARY (7th ed. 1999).

70. See DiGiacinto v. Rector & Visitors of George Mason Univ., 704 S.E.2d 365, 367 (Va.

2011) (explaining that a public university had students who were under the age of eighteen).

71. Michael Rogers, Note, Guns on Campus: Continuing Controversy, 38 J.

OLL. & U.L.

663, 674-75 (2012).

72. Modern state laws also limit the definition of “school” to pre-K-12 institutions. See,

e.g., M

ICH.COMP.LAWS § 750.237a(6)(b) (2017) (defining “school” as “a public, private,

denominational, or parochial school offering developmental kindergarten, kindergarten, or

any grade from 1 through 12”).

73. See Joan H. Miller, Comment, The Second Amendment Goes to College, 35 S

EATTLE

UNIV.L.REV. 235, 248 (2011).

74. See Aurora Temple Barnes, Guns and Academic Freedom, 53 G

ONZ.L.REV. 45, 58

(2017). Barnes does not explicitly state that public universities are excluded, but it is note-

worthy she wrote “pre-K-12 schools,” rather than simply writing “schools.” See id.

1058 WILLIAM & MARY LAW REVIEW [Vol. 63:1047

Ballentine’s Law Dictionary from 1969 more explicitly supports

the argument that the term schools does not encompass public uni-

versities.

Under the definition of school, the dictionary states: “In

usual sense, exclusive of university, college, business college, or

other institution of higher education.”

Although quite old, this

dictionary was published during the early legal career of Justice

Scalia,

who wrote for the majority in Heller.

This definition

makes it clear that the word “school” has had a relatively stable,

rather than evolving, meaning over time.

Common usage of the word school in other contexts further

illustrates this point. The clearest example is when people use the

word “school-age” to describe a person’s age. For example, say that

someone reads a flyer that details a contest, and the flyer states

that all contestants must be “school-age.” Common sense would

indicate to most people reading the flyer that college students are

unable to participate. Similarly, the Court in Heller intended

schools to merely mean the word’s most common definition, which

excludes public universities.

However, schools were mentioned on-

ly as examples of sensitive places in Heller.

Therefore, this does

not stop someone from arguing that even if public universities were

not intended to be included as schools, public universities are still

sensitive places.

B. Public Universities Are Not “Sensitive Places”

Public universities are not sensitive places under Heller. While

the definition of sensitive places remains up for debate,

the D.C.

Circuit and at least one federal district court agree that places are

75. See School, BALLENTINE’S LAW DICTIONARY (3d ed. 1969) [hereinafter School 1969].

76. Id.

77. See id.; Aaron M. Houck, Antonin Scalia, B

RITANNICA (Mar. 7, 2020), https://www.

britannica.com/biography/Antonin-Scalia [https://perma.cc/CUW2-DTTZ].

78. See District of Columbia v. Heller, 554 U.S. 570, 573 (2008).

79. Compare School 2009, supra note 69, with School 1969, supra note 75.

80. See School 1969, supra note 75.

81. See Heller, 554 U.S. at 626.

82. See id. This is precisely the argument that Miller makes. See Miller, supra note 73,

at 248.

83. See Darrell A. H. Miller, Constitutional Conflict and Sensitive Places, 28 W

M.&MARY

BILL RTS. J. 459, 465 (2019).

2022] FIREARMS ON CAMPUS 1059

sensitive “because of ‘the people found there’ or the ‘activities that

take place there.’”

This definition, Heller’s implication that the

home is not a sensitive place, and First Amendment doctrine dem-

onstrate that public universities do not qualify as sensitive places.

1. Heller and the Home as a Non-Sensitive Place

Heller implies that the home is not a sensitive place because

Heller’s holding recognized the individual right to carry firearms

within the home for self-defense purposes.

Heller mentioned

sensitive places in its dicta as possible exceptions to this fundamen-

tal right, providing the two examples of “schools and government

buildings.”

In other words, Heller stands for the proposition that

homes are not sensitive while schools and government buildings

are sensitive.

One might reach a quick conclusion by arguing public universi-

ties are more similar to schools and government buildings than

homes; therefore, the campuses of public universities are sensitive

places. However, as federal courts have noted, a place is sensitive

because of the people or activities found there,

not because the

place itself is more similar to a school or government building, nor

because the place is different than a home. Thus, instead of a

straightforward comparison of two places, it is necessary to compare

the people and activities found at the places.

When examining the people and activities found at public uni-

versities, it becomes clear that they do not qualify as sensitive

places. The court that created the people and activities definition

explained that schools are sensitive because of the people found

within them, while government buildings are sensitive because of

the activities that occur within them.

The people and activities

84. United States v. Class, 930 F.3d 460, 465 (D.C. Cir. 2019) (quoting GeorgiaCarry.Org,

Inc. v. Georgia, 764 F. Supp. 2d 1306, 1319 (M.D. Ga. 2011)).

85. See Heller, 554 U.S. at 636.

86. Id. at 626-27.

87. See id. at 626-27, 636.

88. See Class, 930 F.3d at 465.

89. See GeorgiaCarry.Org, Inc., 764 F. Supp. 2d at 1319. The court noted that “[a]

reasonable argument can be made that places of worship are also sensitive places because of

the activities that occur there;” however, the court refused to reach such a conclusion. See id.

1060 WILLIAM & MARY LAW REVIEW [Vol. 63:1047

definition rests on the premise that children attend schools and the

fact that courts have considered children as defenseless people.

people are what determine the distinction, then public universities

are not to be considered sensitive places because they are primarily

composed of adults rather than children.

Although up for interpretation, the activities occurring in gov-

ernment buildings that deem them sensitive places are likely activ-

ities which can easily provoke others.

For example, courtrooms

have activities within them, such as adversarial court proceedings,

that can easily lead to someone becoming provoked.

The activities

occurring in any legislative, executive, or judicial building can easily

provoke someone. This is why there are “longstanding prohibitions

on the possession of firearms” in such locations.

Accordingly, some

commentators have argued or assumed that the controversial na-

ture of the material conveyed at public universities characterizes

them as sensitive places.

However, the courts must draw a line. Heller and the Second

Amendment cannot stand for the proposition that simply because a

place contains activities that are controversial, all Second Amend-

ment rights are thrown out the door. This principle is obvious given

that controversial speech and activities often occur within one’s

home. Spouses often disagree politically, and families may discuss

controversial topics amongst themselves within their home.

But

those facts do not destroy individual gun rights under Heller.

90. See Brian C. Whitman, Comment, In Defense of Self-Defense: Heller’s Second

Amendment in Sensitive Places, 81 M

ISS. L.J. 1987, 1992 (2012).

91. See, e.g., Ted Barrett, Manu Raju & Peter Nickeas, US Capitol Secured, 4 Dead After

Rioters Stormed the Halls of Congress to Block Biden’s Win, CNN (Jan. 7, 2021, 3:33 AM),

https://www.cnn.com/2021/01/06/politics/us-capitol-lockdown/index.html [https://perma.cc/

66AT-ZJ2S].

92. E.g., WATCH: Brawl Breaks out in Ohio Courtroom During Sentencing for Killer,

WFLA (July 11, 2019, 12:56 PM), https://wfla.com/news/watch-brawl-breaks-out-in-ohio-court

room-during-sentencing-for-killer/ [https://perma.cc/FVK6-QUBL].

93. See District of Columbia v. Heller, 554 U.S. 570, 626 (2008).

94. See Luke Morgan, Note, Leave Your Guns at Home: The Constitutionality of a Prohi-

bition on Carrying Firearms at Political Demonstrations, 68 D

UKE L.J. 175, 211 (2018); Lewis,

supra note 65, at 2129, 2132, 2135.

95. See, e.g., Molly Langmuir, Donald Trump Is Destroying My Marriage, N.Y.

AG. (Nov.

27, 2018), https://nymag.com/intelligencer/2018/11/donald-trump-is-destroying-my-marriage.

html [https://perma.cc/64FA-NDCL].

2022] FIREARMS ON CAMPUS 1061

Perhaps the distinction is that the activities occurring in court-

rooms and other similar government buildings are primarily ad-

versarial, whereas presumably most activities within one’s home are

non-adversarial.

Whatever the distinction may be, as in the home,

controversial material is often conveyed at public universities.

Nevertheless, the bulk of information conveyed at public univer-

sities is noncontroversial. Although the people and activities def-

inition remains ambiguous, the activities occurring at a public

university are no more sensitive than activities that frequently

occur within one’s home, such as heated debates over politics or re-

ligion. Thus, there is no reason to believe public universities qualify

as sensitive places simply because controversial topics are some-

times mentioned in class.

Heller implies the home is not a sensitive place because the Court

preserved Second Amendment rights within the home but suggested

in dicta that sensitive places like schools and government buildings

should be treated differently.

In sum, the people and activities

found at public universities are more similar to the people and ac-

tivities found at a non-sensitive place, such as the home.

2. First Amendment Rights

Many scholars have used First Amendment doctrine to interpret

sensitive places.

However, these approaches have varied tremen-

dously.

100

Scholars likely focus on First Amendment doctrine to help

96. This distinction also presents issues because there are government buildings with

activities that are not primarily adversarial. Heller never stated that gun prohibitions in

government buildings were always lawful, rather that they were “presumptively lawful.” See

Heller, 554 U.S. at 627 n.26.

97. E.g., Mike Luery, VIDEO: Dispute over Politics Leads to Fight at Sacramento State,

KCRA (Dec. 8, 2019, 6:43 PM), https://kcra.com/article/video-dispute-politics-fight-sacramen

to-state/30162704 [https://perma.cc/TBY3-EB6S].

98. See Heller, 554 U.S. at 626-27.

99. See, e.g., Morgan, supra note 94, at 182 (arguing that bans on armed political protests

are constitutional because the First Amendment limits Heller’s sensitive places dicta in

“places where the presence of guns negatively impacts the exercise of free speech”).

100. Compare Lewis, supra note 65, at 2117-34 (arguing that guns on campus burden free

speech and that the notion of academic freedom overrides any potential Second Amendment

rights on campus), with Jordan E. Pratt, A First Amendment-Inspired Approach to Heller’s

“Schools” and “Government Buildings”, 92 N

EB.L.REV. 537, 574-79 (2013) (arguing that First

Amendment doctrine suggests colleges are excluded from Heller’s sensitive places dicta).

1062 WILLIAM & MARY LAW REVIEW [Vol. 63:1047

interpret the Second Amendment because the Court in Heller

analogized to the First Amendment multiple times.

101

Overall, First

Amendment doctrine suggests that schools should be treated dif-

ferently than college campuses in the Second Amendment context,

further supporting the notion that universities are not sensitive

places.

One argument is to read the First Amendment as a limit on the

Second Amendment.

102

Shaundra Lewis has advocated that, in the

campus carry context, a university’s constitutional right of “aca-

demic freedom” outweighs any potential Second Amendment rights

on campus.

103

The argument follows that colleges can and should

ban all guns from campus.

104

However, this position disregards the

importance of an enumerated constitutional right, which Heller

repeatedly emphasized.

105

Lewis herself admits that the right of

academic freedom has not been enumerated by the Supreme Court,

and there are scholarly arguments that it is simply a defense rather

than a constitutional right.

106

While the right to keep and bear arms

is expressly stated in the Second Amendment,

107

a constitutional

right of academic freedom is nowhere to be found in the First

Amendment.

108

It is far too attenuated to argue that a constitutional

right “strongly suggested” (but never announced) by the Supreme

Court, nor contained in the Constitution, trumps an enumerated

right.

109

101. See Heller, 554 U.S. at 582, 595, 635.

102. See Lewis, supra note 65, at 2134-41 (arguing First Amendment rights trump Second

Amendment rights in the campus carry context); Shaundra K. Lewis, Bullets and Books by

Legislative Fiat: Why Academic Freedom and Public Policy Permit Higher Education

Institutions to Say No to Guns, 48 I

DAHO L. REV. 1, 13-17 (2011) (arguing state laws that

compel colleges to allow campus carry violate the First Amendment); Morgan, supra note 94,

at 213 (arguing that a place is sensitive when guns will burden core First Amendment rights

there).

103. See Lewis, supra note 65, at 2117-33.

104. See Lewis, supra note 102, at 28.

105. See Heller, 554 U.S. at 628 n.27, 634.

106. See Lewis, supra note 102, at 17.

107. U.S.

ONST. amend. II (“[T]he right of the people to keep and bear Arms, shall not be

infringed.”).

108. See U.S.

ONST. amend. I; Lewis, supra note 65, at 2117 (“[T]he constitutional right

to academic freedom is not expressly stated in the First Amendment.”).

109. Compare U.S. Const. amend. II (announcing the right “to keep and bear [a]rms”), with

Lewis, supra note 65, at 2117 (explaining that the right of academic freedom is not in the

First Amendment), and Lewis, Bullets and Books, supra note 102, at 17 (explaining that the

2022] FIREARMS ON CAMPUS 1063

A stronger scholarly argument is that First Amendment doctrine

supports the contention that colleges are less sensitive than schools;

therefore, universities are not sensitive places under Heller’s dic-

ta.

110

Jordan Pratt advanced this argument by explaining Supreme

Court decisions that have interpreted First Amendment rights to

be more limited in schools than at universities.

111

Luke Morgan

has criticized Pratt’s argument as borrowing too much from the

First Amendment,

112

yet the crux of Morgan’s argument is that

Heller’s sensitive places dicta should be interpreted based on First

Amendment concerns, rather than Second Amendment concerns.

113

Although Pratt’s argument borrows from the First Amendment, it

helps explain why the Court intended to treat colleges differently

than schools in the Second Amendment context.

114

Morgan argued that “[n]othing about college students having

greater free speech rights than kindergarteners indicates that

undergrads should also have the right to carry a weapon to Phi-

losophy 101.”

115

The problem with this statement is that Morgan

misleads the reader by making a comparison of the rights them-

selves, rather than a comparison of the places, which is ultimately

the debate.

116

The argument here is not over the two rights them-

selves, but how to interpret why certain places are sensitive. Heller

implies that something about the places themselves allows for

more regulation.

117

Furthermore, Morgan overlooks the fact that

colleges are primarily composed of adults who can actually buy

firearms, while schools are primarily composed of children who

cannot.

118

In sum, First Amendment doctrine illustrates that

right of academic freedom has yet to be announced by the Supreme Court).

110. See Pratt, supra note 100, at 576-79.

111. See id.

112. See Morgan, supra note 94, at 211.

113. See id. at 213 (“[C]ourts should adopt the following test: a place is sensitive under

Heller when introducing guns into that place seriously threatens core First Amendment

interests or activity.”).

114. See Pratt, supra note 100, at 576-79.

115. Morgan, supra note 94, at 211.

116. See id.

117. The adjective “sensitive” preceding the noun “places” suggests that the sensitivity of

the places is what permits the greater restriction of constitutional rights in such places. See

District of Columbia v. Heller, 554 U.S. 570, 626-27 (2008).

118. See 18 U.S.C § 922(b)(1) (making it illegal for gun dealers to sell shotguns, rifles, and

ammunition to anyone under the age of eighteen or to sell handguns to anyone under the age

1064 WILLIAM & MARY LAW REVIEW [Vol. 63:1047

constitutional rights are subject to more regulation in schools than

on college campuses, which explains why Heller did not intend to

include college campuses as sensitive places.

C. Federal Case Law Suggests Absolute Gun Bans on Campus

Are Unconstitutional

Even if public universities can be defined as sensitive places,

federal case law suggests that total bans on all firearms on college

campuses are unconstitutional, which, in turn, implies that there is

some constitutional right to carry on campus. So far, this Note has

characterized the campus carry issue as whether individuals have

the individual right to carry firearms on campus. The issue can also

be framed this way: Can a public university constitutionally pro-

hibit any and all firearms from its campus? If a public university

(or state) cannot constitutionally ban all firearms from its campus,

then some individual right to carry firearms on campus must exist.

In what follows, this Note argues that Heller and its progeny sug-

gest absolute prohibitions on firearms on campus are unconstitu-

tional.

Michael Rogers, a law student writing on campus carry, reached

this same conclusion and suggested that courts should apply strict

scrutiny to absolute firearms bans on campus.

119

This Note agrees

with Rogers’s contention that absolute prohibitions on campus are

unconstitutional, but this Note does not suggest or analyze hypo-

thetical total bans under any tier of scrutiny. This is because the

sensitive places doctrine originated from Heller, in which the Court

specifically refused to apply any tier of scrutiny to a prohibition on

handgun possession within the home.

120

Heller notes that “long-

standing prohibitions” on firearms in sensitive places are “presump-

tively lawful.”

121

Interpreting this language to mean that courts

should apply the lowest level of scrutiny to firearms bans in sen-

sitive places is too far of a stretch—especially given that the Court

of twenty-one).

119. See Rogers, supra note 71, at 700 (“[O]utright firearm bans on college and university

campuses, due to their distant reach, absolute nature, and scope of effect, warrant the highest

level of scrutiny.”).

120. See Heller, 554 U.S. at 628-29.

121. Id. at 626, 627 n.26.

2022] FIREARMS ON CAMPUS 1065

in Heller refused to apply a specific level of scrutiny to a ban on a

particular type of firearm, namely, handguns.

122

1. The Tiers of Scrutiny Do Not Apply to Absolute Bans

The Court in Heller faced a constitutional challenge to a D.C.

law that effectively prohibited Dick Heller from possessing a hand-

gun within his home.

123

However, the Court struck down the ban

without applying a traditional tier of scrutiny.

124

Specifically, the

Court stated, “[u]nder any of the standards of scrutiny that we have

applied to enumerated constitutional rights, [the District of Co-

lumbia’s prohibition] would fail constitutional muster.”

125

Rather,

the Court simply said that the law was a “severe restriction.”

126

The

Heller Court’s failure to apply a specific level of scrutiny left lower

courts with little practical guidance when dealing with Second

Amendment challenges.

127

However, Heller counsels in favor of low-

er courts not applying any specific standard of scrutiny when facing

complete bans or “severe restriction[s]” like the D.C. law that was

at issue.

128

Instead of applying a standard of scrutiny, Heller focused

on the history of gun regulations and the Second Amendment to

strike down the D.C. law.

129

Many federal circuit courts have followed Heller’s analysis when

faced with absolute prohibitions on firearms. In 2012, the Seventh

Circuit did not apply any standard of scrutiny when it struck down

a law effectively prohibiting the public carrying of firearms.

130

Similarly, in 2017, the D.C. Circuit declined to apply a tier of

scrutiny when it struck down a law that it categorized as a complete

122. See id. at 628-29.

123. Id. at 574-75.

124. Id. at 628-29.

125. Id. (citation omitted).

126. Id. at 629.

127. See Kachalsky v. County of Westchester, 701 F.3d 81, 89 (2d Cir. 2012) (explaining

Heller’s failure to define the scope of public carry and the appropriate standard); United

States v. Masciandaro, 638 F.3d 458, 467 (4th Cir. 2011) (explaining the unsettled law

regarding the scope of public carry).

128. See Heller, 554 U.S. at 628-29.

129. See id. at 595, 629 (emphasizing the importance of history throughout the opinion).

130. See Moore v. Madigan, 702 F.3d 933, 934, 941-42 (7th Cir. 2012).

1066 WILLIAM & MARY LAW REVIEW [Vol. 63:1047

ban.

131

The D.C. Circuit reasoned that Heller’s refusal to apply a

level of scrutiny stopped lower courts from finding persuasive

grounds to uphold total bans.

132

Even circuits that have applied

intermediate scrutiny to gun regulations have adamantly pointed

out that the laws upheld were not complete bans on firearms.

133

Before applying intermediate scrutiny and upholding New York’s

“proper cause” requirement, the Second Circuit pointed out that the

law did “not operate as a complete ban on the possession of hand-

guns in public.”

134

Furthermore, the Fourth Circuit followed this

approach by differentiating Maryland’s good reason requirement

from an absolute ban before applying intermediate scrutiny and

upholding the law.

135

These approaches by federal circuit courts

illustrate Heller’s stringency toward absolute bans on firearms and

the common practice of not applying a standard of scrutiny to

absolute bans on firearms.

One might think that Heller’s sensitive places language explicit-

ly carved out an exception for absolute bans in places that are deem-

ed sensitive; however, this contention reads Heller’s sensitive places

dicta far too broadly. In footnote twenty-six, the Court noted that its

sensitive places dicta simply identified “presumptively lawful reg-

ulatory measures.”

136

The words “presumptively lawful” may lead

one to believe that the lowest level of scrutiny should be applied to

firearms prohibitions in such places.

Practically speaking, this interpretation makes little sense: if

courts applied mere rational basis scrutiny to all gun regulations in

sensitive places, almost every measure would be upheld because of

the danger that firearms pose.

137

This would leave litigants with

little ability to challenge any gun regulations in sensitive places

under the Second Amendment. If virtually all gun regulations in

sensitive places, including absolute bans, would be upheld under ra-

tional basis scrutiny, then there would be no reason for the Heller

131. See Wrenn v. District of Columbia, 864 F.3d 650, 665-66, 668 (D.C. Cir. 2017).

132. Id. at 665.

133. See, e.g., Kachalsky v. County of Westchester, 701 F.3d 81, 91 (2d Cir. 2012).

134. Id.

135. See Woollard v. Gallagher, 712 F.3d 865, 881 (4th Cir. 2013).

136. See District of Columbia v. Heller, 554 U.S. 570, 627 n.26 (2008).

137. See id. at 628 n.27 (explaining that nearly every law would survive rational basis

scrutiny).

2022] FIREARMS ON CAMPUS 1067

Court to precede the word “lawful” with “presumptively.”

138

The

term “presumptively” implies that some regulations within sensitive

places are unlawful.

139

Absolute bans on firearms are the most

restrictive gun regulations that can be imposed within sensitive

places. Thus, this word usage implies that such a severe restriction

is likely unconstitutional.

140

If the Court intended the language to

be read broadly, it could have simply excluded the word “presump-

tively” and simply stated that measures in sensitive places were

lawful. More importantly, Heller itself stated in the very next

footnote that the D.C. law at issue would pass rational basis

scrutiny, but that such a test is inapplicable to enumerated rights

like those in the Second Amendment.

141

Specifically, the Court

stated, “[i]f all that was required to overcome the right to keep and

bear arms was a rational basis, the Second Amendment would be

redundant with the separate constitutional prohibitions on irratio-

nal laws, and would have no effect.”

142

Therefore, a narrower in-

terpretation of Heller’s sensitive places dicta is more persuasive and

more aligned with the Heller Court’s intentions.

The sensitive places dicta seems to operate more as a factor

weighing in favor of upholding a gun regulation rather than a

straightforward exception.

143

Thus, when courts are faced with

138. See id. at 627 n.26.

139. See United States v. Chester, 628 F.3d 673, 679 (4th Cir. 2010) (“In fact, the phrase

‘presumptively lawful regulatory measures’ suggests the possibility that one or more of these

‘longstanding’ regulations ‘could be unconstitutional in the face of an as-applied challenge.’”

(quoting United States v. Williams, 616 F.3d 685, 692 (7th Cir. 2010))). The court in Chester

followed Heller by expressly rejecting rational basis review and declined the interpretation

that Heller’s “longstanding prohibitions” language was a straightforward exception for gun

regulations. See id.

140. If absolute bans on any and all firearms in sensitive places are constitutional, then

the word “presumptively” is useless because restricting all firearms from a sensitive place is

the most restrictive gun measure that can be imposed. See Heller, 554 U.S. at 629.

141. See id. at 628 n.27; Heller v. District of Columbia (Heller II), 670 F.3d 1244, 1256 (D.C.

Cir. 2011) (“Heller clearly does reject any kind of ‘rational basis’ or reasonableness test.”);

Chester, 628 F.3d at 682 (“Heller ... indicate[d] that rational basis review would not apply in

this context.”).

142. Heller, 554 U.S. at 628 n.27.

143. See Chester, 628 F.3d at 679 (rejecting the idea that Heller’s “longstanding

prohibitions” language was a “safe harbor” for gun measures because that would be applying

rational basis scrutiny in the Second Amendment context, which is forbidden by Heller). In

dicta, the Third Circuit has taken the opposite approach by explaining that Heller’s dicta

works as an exception. See United States v. Marzzarella, 614 F.3d 85, 91 (3d Cir. 2010).

Notably, however, the Third Circuit assumed that the challenged law burdened Second

1068 WILLIAM & MARY LAW REVIEW [Vol. 63:1047

absolute bans in sensitive places, they should follow Heller and

federal circuit courts by refusing to apply a typical standard of

scrutiny.

144

The fact that a place is sensitive should certainly sup-

port upholding a gun regulation, but the characterization itself

should not be determinative. Rather, courts should follow Heller

by invoking its historical method when dealing with constitution-

al challenges to absolute bans on firearms in sensitive places.

In the context of a public university, the most severe and restric-

tive gun regulation would be a total prohibition on all firearms.

There would be no need to apply any tier of scrutiny to such an ab-

solute prohibition according to Heller and subsequent decisions by

federal circuit courts.

145

Thus, a court facing an absolute firearms

ban on a college campus should invoke Heller’s historical approach

to determine whether the challenged restriction is constitutional.

146

In the next Section, this Note describes how a complete ban on fire-

arms at a public university fails under Heller’s historical approach.

Therefore, following Heller and subsequent federal case law, an

absolute ban on firearms on a public university campus would likely

fail constitutional muster.

2. Absolute Firearms Bans on Campus Fail Heller’s Historical

Method

Under Heller’s historical analysis, a total firearms prohibition on

campus would likely be held unconstitutional, which implies that

individuals have some constitutional right to carry firearms on

campus. Until the Supreme Court provides further guidance, it is

necessary for lower courts to roll up their sleeves and apply a

historical-based approach to absolute firearms bans, even if those

bans are in sensitive places. This analysis is most aligned with the

Amendment rights, and it chose to apply intermediate scrutiny rather than upholding the law

as falling under the exception it claimed Heller’s dicta created. See id. at 95. Furthermore, the

court relied on Heller’s express rejection of rational basis scrutiny for laws burdening Second

Amendment rights. See id. at 95-96.

144. See supra notes 120-35 and accompanying text.

145. See supra notes 120-35 and accompanying text.

146. See Wrenn v. District of Columbia, 864 F.3d 650, 663 (D.C. Cir. 2017) (describing that

Heller used a historical analysis and that it is the appropriate test for absolute firearms bans).

2022] FIREARMS ON CAMPUS 1069

Court’s approach in Heller.

147

When examining the history of gun

measures on college campuses, it becomes easily understood that

total bans on campus are likely unconstitutional.

Scholars David Kopel and Joseph Greenlee argued that Heller’s

sensitive places dicta has “a weak foundation in history and tra-

dition.”

148

They analyzed the earliest gun regulations at public

universities and reached the conclusion that the regulations do not

underpin Heller’s designation of schools as sensitive places.

149

Perhaps they reached this conclusion because they miscategorized

public universities as schools.

150

Nevertheless, their examination of

early campus gun regulations actually supports the contention that

absolute gun prohibitions on campus are unconstitutional under

Heller’s historical method.

Specifically, Kopel and Greenlee noted that the College of New

Jersey, Rutgers University’s predecessor, allowed guns on campus

in 1853, but the state made pistol ranges illegal if they were within

three miles of the campus.

151

In 1874, New Jersey enacted a similar

law for Drew University, but the state again refused to ban guns

from the campus.

152

The University of Virginia banned firearms in

1824 after student rioting, but the measure was not an absolute

ban because it applied only to students.

153

Mississippi banned con-

cealed carry at all colleges in 1878, but the law applied only to

students and allowed open carry.

154

Kopel and Greenlee’s research shows that states and universities

that promulgated some campus gun restrictions still refrained from

enacting absolute prohibitions. Importantly, James Madison and

Thomas Jefferson were part of the board at the University of

Virginia that chose to ban students from having firearms on

campus.

155

Yet even after riots and shootings on campus, Madison

147. See generally District of Columbia v. Heller, 554 U.S. 570 (2008) (emphasizing the

importance of history throughout the opinion).

148. David B. Kopel & Joseph G.S. Greenlee, The “Sensitive Places” Doctrine: Locational

Limits on the Right to Bear Arms, 13 C

HARLESTON L. REV. 205, 294 (2018).

149. Id. at 249-52.

150. See id.

151. Id. at 250-51.

152. Id. at 251.

153. See id. at 249-50.

154. Id. at 251-52.

155. Id. at 250.

1070 WILLIAM & MARY LAW REVIEW [Vol. 63:1047

and Jefferson did not enact an absolute gun ban.

156

Perhaps that

was because, as drafters of America’s founding documents, the

Second Amendment was in the back of their minds.

Modern laws also support a Second Amendment right to carry on

campus. As Shaundra Lewis explained, there has been a modern

trend of states removing very restrictive campus gun laws, and

some states now require colleges to permit campus carry.

157

Lewis

noted that only a minority of states “expressly ban” campus carry.

158

Even among the seventeen states that Lewis mentions “expressly

ban” campus carry, a closer examination of those laws reveals that

many of them are not absolute bans.

159

For example, Massachusetts

and South Carolina allow campus carry when an individual obtains

the university’s consent.

160

Michigan forbids concealed carry, but not

open carry, in classrooms and dorms.

161

Missouri and Wyoming also

limit their campus carry bans to only concealed carry.

162

Although the majority of states have not prohibited campus carry,

the majority of public universities have adopted their own measures

156. See id. at 249-50.

157. See Lewis, supra note 65, at 2113-17.

158. Id. at 2115.

159. See id. at 2115-16.

160. Id. at 2115 n.32, 2116 n.42; M

ASS.GEN.LAWS ch. 269, § 10(j) (2021) (making it a

criminal violation to possess a firearm on college campuses without consent); S.C.C

ODE ANN.

§ 16-23-420(A) (2009) (making it illegal to possess a firearm on college campuses without

consent). These are not absolute bans because they allow the universities to consent to

individual firearm possession; however, a university’s firearms policy could be deemed an

absolute ban depending on the circumstances in which it gives consent.

161. Lewis, supra note 65, at 2115 n.33. This means that in Michigan, those with a

concealed carry license can carry everywhere on campus except in dorms and classrooms. See

ICH.COMP.LAWS § 28.425o(1)(h) (2017). The statute is silent on open carry on campus. See

id.

162. See Lewis, supra note 65, at 2116 nn.34 & 43; M

O.REV.STAT. § 571.107.1(10) (2014)

(prohibiting concealed carry on college campuses, but allowing concealed firearms to remain

in vehicles); W

YO.STAT.ANN. § 6-8-104(t)(x) (2021) (prohibiting concealed carry on college

campuses unless written consent is obtained). Forbidding concealed carry, but not open carry,

is in accordance with the Ninth Circuit’s interpretation of Heller and the Second Amendment.

See Peruta v. County of San Diego, 824 F.3d 919, 942 (9th Cir. 2016) (en banc) (“If there is

such a right [to carry in public], it is only a right to carry a firearm openly.”). At least one

commentator shares this view. See generally Jonathan Meltzer, Note, Open Carry for All:

Heller and Our Nineteenth-Century Second Amendment, 123 Y

ALE L.J. 1486 (2014) (arguing

that the Second Amendment protects the right to open carry, but not concealed carry, in

public).

2022] FIREARMS ON CAMPUS 1071

to effectively ban guns on campus.

163

This may conflict with the

Court’s recognition of an individual right to carry firearms under

the Second Amendment in Heller

164

and subsequent federal case law

interpreting Heller and the Second Amendment to imply a right to

carry in public.

165

In 2014, five state legislatures proposed bans on

campus carry, but not a single one passed.

166

In contrast, as of 2019,

ten state legislatures had passed laws allowing concealed carry on

campus.

167

The refusal by the majority of states to enact absolute

firearms bans on college campuses, combined with the trend by

states to compel colleges to allow some form of campus carry,

168

shows that states are likely concerned about their universities

violating individual rights guaranteed by the Second Amendment.

In sum, historical gun measures illustrate the hesitancy by

colleges and our founding fathers to enact absolute bans on campus

carry. Although today most colleges ban guns on their own, most

state legislatures have refrained from enacting absolute bans on

campus carry.

169

Instead, there has been a trend by state legisla-

tures to force universities to loosen their restrictions and allow

campus carry in some form.

170

Therefore, under Heller’s historical

analysis, there is little support that public universities can consti-

tutionally enact total prohibitions on campus carry. It follows that

there exists some individual right to carry firearms on campus.

However, as the next Part explains, this right is extremely narrow,

and states and universities still retain broad power to enact gun

restrictions.

163. See, e.g., Weapons, Firearms, Combustibles, and Explosives, WM.&MARY (2020),

https://www.wm.edu/offices/deanofstudents/services/communityvalues/studenthandbook/w

eapons_firearms/ [https://perma.cc/E6Y7-KVS4] (effectively banning firearms from campus

by generally prohibiting firearms and reserving the right to refuse permission in any case);

see also Lewis, supra note 65, at 2116-17 (stating that the majority of U.S. universities ban

firearms).

164. See District of Columbia v. Heller, 554 U.S. 570, 579 (2008).

165. See, e.g., Moore v. Madigan, 702 F.3d 933, 942 (7th Cir. 2012).

166. Guns on Campus: Overview, N

AT’L CONF. OF STATE LEGISLATURES (Nov. 1, 2019),

https://www.ncsl.org/research/education/guns-on-campus-overview.aspx [https://perma.cc/

WB7F-SRBR].

167. Id.

168. See, e.g., T

EX.GOV’T CODE ANN. § 411.2031(d-1) (West 2016) (prohibiting universities

from generally banning concealed carry on campus).

169. See supra notes 158, 164 and accompanying text.

170. See supra notes 169-70 and accompanying text.

1072 WILLIAM & MARY LAW REVIEW [Vol. 63:1047

III. H

OW CAN STATES AND PUBLIC UNIVERSITIES REGULATE

FIREARMS?

As discussed above, Heller’s sensitive places dicta, lower court

case law, and history and tradition suggest that there is a narrow,

but constitutionally protected, right to keep and bear arms on the

campus of a public university. However, like other constitutional

rights, this right is not unlimited. States and public universities still

hold broad power to regulate firearms on campus without infringing

on individual rights guaranteed by the Second Amendment. The

circuit courts have largely applied or incorporated intermediate

scrutiny when assessing gun laws that are not complete bans on

firearms.

171

This suggests that almost every gun restriction up to a

total prohibition on campus would be permissible.

A. Likely Permissible Regulations Under Heller

It is important to look at Heller for direction as to which campus

gun regulations may be permissible. Heller specifically mentioned

that some gun restrictions are “presumptively lawful” irrespective

of whether they are in sensitive places, such as “longstanding

prohibitions on the possession of firearms by felons and the

mentally ill.”

172

This means that states and public universities can

presumptively ban “the possession of firearms by felons and the

mentally ill.”

173

However, the Court’s statement provides little

guidance for public universities because many states already gen-

erally ban these categories of people from possessing firearms.

174

Furthermore, under Heller’s historical approach, it is likely per-

missible for public universities to prohibit students from possessing

171. See Gould v. Morgan, 907 F.3d 659, 672 (1st Cir. 2018); Tyler v. Hillsdale Cnty.

Sheriff’s Dep’t, 837 F.3d 678, 692 (6th Cir. 2016); Kachalsky v. County of Westchester, 701

F.3d 81, 96 (2d Cir. 2012); United States v. Masciandaro, 638 F.3d 458, 473-74 (4th Cir. 2011);

Heller II, 670 F.3d 1244, 1256 (D.C. Cir. 2011); United States v. Marzzarella, 614 F.3d 85, 95,

97 (3d Cir. 2010).

172. See District of Columbia v. Heller, 554 U.S. 570, 626-27, 627 n.26 (2008).

173. See id. at 626.

174. See, e.g., Va. Code Ann. § 18.2-308.2 (2021) (making it a crime for felons to possess

firearms).

2022] FIREARMS ON CAMPUS 1073

firearms on campus given that the University of Virginia enacted

such a restriction in the nineteenth century with a board composed

of Thomas Jefferson and James Madison.

175

In the late nineteenth

century, Mississippi prohibited college students from concealed

carrying on campus, which under Heller’s historical approach, would

support the constitutionality of such a restriction today.

176

However,

in order to appropriately assess specific gun restrictions that are

not absolute bans, it is necessary to look beyond Heller’s historical

approach. The Heller Court applied a historical approach and

rejected a specific level of scrutiny because the challenged law was

a complete ban on one of the “most popular” firearms for self-

defense.

177

Thus, Heller did not foreclose the application of a specific

level of scrutiny in all circumstances.

B. Likely Permissible Regulations Under Intermediate Scrutiny

The Supreme Court has not specifically indicated which level of

scrutiny lower courts should apply to gun regulations that are not

complete bans.

178

However, the federal circuit courts have largely

applied intermediate scrutiny to gun restrictions that are not

complete bans, which often leads to courts upholding the challenged

regulation.

179

Under intermediate scrutiny, the government must

show: (1) an important governmental interest, and (2) that the law

is substantially related to that interest.

180

If both elements are

satisfied, the court will uphold the law.

181

In 2011, in a case commonly referred to as Heller II, the D.C.

Circuit applied intermediate scrutiny and upheld a D.C. law ban-

ning assault weapons and high-capacity magazines.

182

The court

pointed to the dangerousness of assault weapons (and the speed at

which they can fire) to find that the law was substantially related

to the important “interest in crime control in the densely populated

175. See Kopel & Greenlee, supra note 148, at 250.

176. See id. at 251-52.

177. Heller, 554 U.S. at 628-29.

178. See id. (refusing to apply a traditional tier of scrutiny).

179. See supra note 172 and accompanying text.

180. See Heller II, 670 F.3d 1244, 1262 (D.C. Cir. 2011).

181. See id.

182. Id. at 1262-64.

1074 WILLIAM & MARY LAW REVIEW [Vol. 63:1047

urban area that is the District of Columbia.”

183

Furthermore, the

ten-round magazine capacity restriction was substantially related

to the important interest of protecting innocent people and police

officers because high-capacity magazines enable criminals to shoot

more rounds and injure more people.

184

Heller II shows that, at a minimum, states and universities in

densely populated urban areas could constitutionally prohibit

assault weapons and high-capacity magazines from campus.

185

Additionally, Heller II shows that when intermediate scrutiny is

applied in the Second Amendment context, the first element is

almost always satisfied because controlling crime and protecting

innocent people are generally the goals behind all gun restric-

tions.

186

Therefore, the determining element is often whether the

gun regulation is too overinclusive or too underinclusive to be con-

sidered substantially related to safety interests.

187

In 2012, the Fifth Circuit applied intermediate scrutiny to uphold

a federal law that prohibited the commercial sale of pistols to people

under the age of twenty-one.

188

The court reasoned the law was

sufficiently related to the important interest of controlling crime

because the law only applied to handguns, meaning that adults

between the ages of eighteen and twenty could still purchase long

guns.

189

Furthermore, adults in that age range were responsible for

a large portion of homicides.

190

This case shows that states and pub-

lic universities could likely institute an age restriction to possess

183. Id. at 1262-63.

184. See id. at 1263-64.

185. See id. at 1262-64.

186. See id.; see also Geoff Dancy, Mirya Holman & Kayden McKenzie, The Origins of Gun

Policy in U.S. States, 60 W

ASH.UNIV. J.L. & POL’Y 171, 176-78 (2019) (explaining that gun

control policies are perceived by public health researchers to “lower the risk of fatalities” and

describing the belief that more guns lead to more crime); Laurel Loomis, A New Look at Gun

Control Legislation: Responding to a Culture of Violence, 27 B

EVERLY HILLS BAR ASS’N J. 160,

162 (1993) (explaining that the goal behind the Gun Control Act of 1968 “was to limit crime

by restricting public access to firearms”).

187. See, e.g., Kachalsky v. County of Westchester, 701 F.3d 81, 97 (2d Cir. 2012) (“As the

parties agree, New York has substantial, indeed compelling, governmental interests in public

safety and crime prevention. The only question then is whether the proper cause requirement

is substantially related to these interests.” (citations omitted)).

188. Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives,

700 F.3d 185, 207 (5th Cir. 2012).

189. Id. at 208-09.

190. Id. at 210.

2022] FIREARMS ON CAMPUS 1075

certain firearms on campus, which could significantly lower the

number of guns on campus.

The lower federal court case law demonstrates the leniency of the

intermediate scrutiny standard when it is applied in the Second

Amendment context. Generally, when the lower courts apply in-

termediate scrutiny, the challenged gun restriction is upheld.

191

would likely be even easier for campus gun restrictions to pass in-

termediate scrutiny. As scholars have noted, there are often high

densities of people on college campuses, and controversial mate-

rial is often conveyed in college classrooms.

192

Although this Note

disagrees that those characteristics make a place sensitive under

Heller,

193

they remain important considerations when determining

whether a law passes intermediate scrutiny. For example, the high

densities of people on college campuses would support a public

university’s decision to implement more gun restrictions at campus

events or in crowded dorms or lecture halls.

194

Limiting the gun

restrictions to those high-density areas would likely be substantially

related to the important governmental interest of campus safety.

195

In sum, states and public universities have broad regulatory

power if intermediate scrutiny applies to gun restrictions that are

not complete bans. However, the Supreme Court’s upcoming de-

cision in New York State Rifle & Pistol Ass’n v. Bruen may clarify

what standard of scrutiny applies to challenged laws that are not

complete bans.

196

Notably, then-Judge Kavanaugh dissented from the D.C. Circuit’s

majority opinion in Heller II.

197

He argued that Heller’s historical

approach applies to all gun regulations and expressly rejected

intermediate scrutiny.

198

Justice Thomas has criticized the lower

courts for purporting to apply intermediate scrutiny but actually

191. See, e.g., Woollard v. Gallagher, 712 F.3d 865, 882 (4th Cir. 2013).

192. See supra note 97 and accompanying text.

193. See supra Part II.C.1.

194. See Heller II, 670 F.3d 1244, 1263 (D.C. Cir. 2011) (emphasizing that the challenged

law applied to a “densely populated urban area”).

195. See id.

196. See de Vogue, supra note 60.

197. Heller II, 670 F.3d at 1269-96 (Kavanaugh, J., dissenting).

198. Id. at 1271.

1076 WILLIAM & MARY LAW REVIEW [Vol. 63:1047

applying a more permissive standard.

199

In a dissent while she was

a judge on the Seventh Circuit, Justice Barrett expressed her

originalist and historical approach to the Second Amendment.

200

Although the majority incorporated intermediate scrutiny in its

analysis,

201

Barrett’s dissent failed to mention anything about

intermediate scrutiny.

202

Recently, Justice Alito wrote a dissenting

opinion, joined by Justice Gorsuch and Justice Thomas, which

stated, “[a]lthough the courts below claimed to apply heightened

scrutiny, there was nothing heightened about what they did.”

203

Justice Kavanaugh explained in a concurrence that he agreed with

Alito’s worries about lower courts improperly applying Heller and

McDonald.

204

Given that a majority of the Supreme Court is skeptical about

lower courts’ application of Heller and their interpretation of the

Second Amendment, it is likely that the Court’s current makeup

would affirm the narrow constitutional right to carry on campus.

The Justices’ distrust in lower courts may also lead to an opinion

clarifying the Second Amendment. But until then, it is safe for pub-

lic universities to assume their gun restrictions are constitutional

as long as they are substantially related to an important interest

and do not amount to a complete ban of firearms from campus.

ONCLUSION

Although policy reasons may indicate otherwise, contemporary

Second Amendment law strongly suggests that there is a narrow

constitutional right for individuals to carry firearms on the campus

199. See Silvester v. Becerra, 138 S. Ct. 945, 948 (2018) (Thomas, J., dissenting from denial

of certiorari) (“The Ninth Circuit claimed to be applying intermediate scrutiny, but its

analysis did not resemble anything approaching that standard.”).

200. See Kanter v. Barr, 919 F.3d 437, 451 (7th Cir. 2019) (Barrett, J., dissenting).

201. Id. at 447-48 (majority opinion).

202. See id. at 451-69 (Barrett, J., dissenting). Although Justice Barrett did not mention

intermediate scrutiny, she did mention that the majority’s holding “treat[ed] the Second

Amendment as a ‘second-class right, subject to an entirely different body of rules than the

other Bill of Rights guarantees.’” Id. at 469 (quoting McDonald v. City of Chicago, 561 U.S.

742, 780 (2010)).

203. N.Y. State Rifle & Pistol Ass’n, Inc. v. City of New York, 140 S. Ct. 1525, 1541-42

(2020) (Alito, J., dissenting).

204. Id. at 1527 (Kavanaugh, J., concurring).

2022] FIREARMS ON CAMPUS 1077

of a public university. The Supreme Court in Heller took a historical

approach to interpret the Second Amendment, holding that there is

an individual right to carry a firearm, for the purpose of self-

defense, within the home. Federal circuit courts have recognized

that Heller extends into the public arena. A close examination of

Heller’s sensitive places dicta illustrates the Court did not intend

for its dicta to encompass public universities. Even if it did, apply-

ing Heller’s historical approach to a total ban of firearms on campus

demonstrates that such a ban is unconstitutional under the Second

Amendment. However, states and public universities may still

heavily regulate firearms on campus as long as their regulations do

not amount to absolute bans or fail intermediate scrutiny.

Jared A. Tuck

* J.D. Candidate, 2022, William & Mary Law School; B.A., 2019, Emory & Henry

College. I would like to extend a special thanks to the Law Review staff who reviewed and

edited this Note, including: William Spotswood, Alexander Reinert, Sean Tenaglia, Daniel

Bruce, Daniel Ruesta, Sarah Fisher, Maggie Utecht, Francesca Babetski, and Anna Rhoads.

I would also like to thank Abriana Lawson, Pat Tuck, and Dalton Slatton for their inspiration

and support throughout the writing process.