Guns, Universities, Colleges and the Second Amendment

We've all had to deal with hearing about awful tragedies involving guns at schools across the country.  The severity and frequency seem to be on the rise. Despite recent rulings which have made the Second Amendment an individual right, state courts have continued to allow gun bans on college campuses.

Casey J. Nelson, a student at UNLV Boyd School of Law, presents some compelling arguments about the right of self-defense, the Second Amendment and perhaps how they apply to these situations on the campuses of our institutions of higher learning.  The introduction is posted here, and the full text is attached as a pdf.

Later in the article, Casey cites to an article by Professor Volokh that I am providing a link to here.

Does the Second Amendment Protect a Citizen’s Right to Carry a Firearm on Nevadan Colleges and Universities in a post-Heller and McDonald World?

Introduction

It happens over and over again. Across the nation, somber news anchormen and women interrupt our regular broadcasting to bring us images of what was once a beautiful university square, now occupied by ambulances, heavily-armed law enforcement officials, and horrified groups of college students huddled behind crime scene tape. An armed individual has entered a classroom, pulled out a gun, and started shooting people. Severe depression? Religious fanaticism? Hate-filled rage? No matter the reason, the results are usually the same: multiple dead and twice as many wounded. And although law enforcement was quick to respond to the scene, the shooter had already finished his deed and taken his own life. Because he only needed seconds, while law enforcement was minutes away. The above hypothetical scenario could occur at just about any U.S. college or university. In fact, it already has. And unfortunately, in the majority of these colleges and universities, students and faculty are at the complete mercy of the deranged killer because they lack the means to effectively stop the imminent attack with equal force. Welcome to the mythical “gun free zone.”

Nearly every state legislature has (with good intentions, of course) enacted statutes prohibiting citizens from lawfully possessing firearms on campus. Most of these prohibitions also prevent those citizens who have been granted concealed carry licenses or permits from carrying on campus as well. Yet the truth is that these supposed “gun free zones” sometimes end up being “free-fire zones” instead, where mass killers are granted unmitigated freedom to open fire on innocent and defenseless civilians. This is because these prohibitions cause those law-abiding students and faculty members to leave home the very weapons they are authorized and qualified to carry in other public places such as malls, shopping centers, parks, restaurants and movie theaters. They do so because they obey the law, while the criminally-insane killers simply ignore the “No Weapons Allowed” sign as they walk through the front door. And why would these individuals care about a firearm restriction? Murder and assault with a deadly weapon are also against the law, and they don’t seem to have a problem in violating those statutes.

The Nevada legislature has similarly attempted to create “gun free zones” on university and college campuses throughout the state. NRS 202.265 prohibits a person from carrying or possessing a “dangerous weapon”- most notably firearms- “while on the property of the Nevada System of Higher Education, a private or public school or child care facility, or while in a vehicle of a private or public school or child care facility.”[1] The statute does allow the president of each university and college to grant written permission to individuals to carry firearms on campus,[2] but requests for this permission, at least by students possessing concealed carry licenses for the state of Nevada, are simply ignored or summarily denied. And while it appears that the statute, both on its face and as its applied, strips citizens of their firearms while on campus, the question remains as to whether it also strips them of a constitutional right? In other words, does NRS 202.265 infringe a constitutionally protected right to bear arms?

It is well-known that the Second Amendment to the United States Constitution speaks of the “right to bear arms,”[3] but what is the extent of that right? In 2008, the United States Supreme Court held in Heller v. District of Columbia that the Second Amendment protects a fundamental individual right to possess a readily operational handgun in the home for the purposes of self-defense. But does this right to bear arms, which seems inextricably connected to the concept of self defense, extend beyond home and hearth? Does it extend to the edge of the street? To the workplace? To the classroom? In writing the opinion for Heller, Justice Scalia suggests that the right to keep and bear arms is a fundamental right, but just like all of the other rights found in the Bill of Rights, it isn’t an absolute right, and is therefore subject to some restrictions. But what is the extent of these restrictions? What analytical framework should the courts employ to determine what the Second Amendment right is? To be certain, Heller left us with a lot more questions than answers. Further complicating things is the holding in McDonald v. Chicago, in which in 2010 the United States Supreme Court held that the Fourteenth Amendment incorporated the Second Amendment to apply against the states and other local governments, meaning that Nevada and all of its municipalities must comply with the holding in Heller.[4]

Furthermore, not only must the state of Nevada ensure that its firearm laws do not run afoul of the federal Constitution, but Nevada’s state constitution also has what could be called it’s very own “right to bear arms” provision. And although McDonald makes it now clear that at a minimum Nevada’s laws must meet the Federal Constitution’s limits with respect to “the right to bear arms,” the state constitutional provision begs the question of whether Nevada grants a more expansive right than the federal Constitution does. Or will the Nevada Supreme Court simply determine that the two constitutional provisions are essentially one and the same? This article seeks to answer the question of whether Nevada’s ban on firearms on university and college campuses is constitutional, either under the federal Constitution or the Nevada’s Constitution and how the courts will go about determining the answer to this question.

---Click Here to Read the Whole Article


[1] Nev. Rev. Stat. § 202.265 (2007).

[2] Id.

[3] U.S. Const. amend. II, § 2.

[4] 130 S.Ct. 3020, 3026 (2008).

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