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.
{
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….
Additionally, the Court of Appeals’ opinion cited two federal cases from out-of-state jurisdictions to support the idea that a university campus is considered a sensitive place. However, these cases did not thoroughly analyze the issue, as they did not specifically address college or university campuses but instead focused on nonschool government locations. Moreover, the historical regulations discussed in these cases did not involve a complete ban on firearms on campus, but rather limited prohibitions on student possession of firearms and carrying firearms in specific areas.
Furthermore, the Court of Appeals referenced a third case that upheld a prohibition on carrying concealed weapons, not a total ban on firearms. This decision cited various historical examples of limited prohibitions on student possession of firearms and carrying firearms in specific locations, rather than across entire campuses. Importantly, all of these decisions attempted to conduct a historical analysis that the Court of Appeals deemed unnecessary in this case. The responsibility of addressing public safety concerns within the University falls on the policy-maker, which in this case is the University itself. Given that the University is a school and a sensitive place, it is crucial for the policy-maker to determine the appropriate measures to ensure public safety on campus.
Source link
