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Tuesday, June 24, 2014

Campus Gun Control and the Second Amendment

From Nancy Leong's blog, I learned about an article in the Boston Review by Evan DeFilippis entitled Campus Gun Control Works. In his article, DeFilippis notes that while the United States has suffered more school shootings than other countries, people in schools or on college campuses are much less likely to be victims of gun crime than people in other locations.

DeFilippis focuses much of his article on college campuses, and notes that permitting firearm possession on campuses is a bad idea. From the article:

In a recent editorial in the Chronicle of Higher Education, former Idaho State University Provost Gary Olson spoke to the realities of firearms on campus, their limited potential to improve safety, and the near certainty that they would have the opposite effect. “There is no recorded incident in which a victim—or spectator—of a violent crime on a campus has prevented that crime by brandishing a weapon,” Olson wrote. “In fact, campus police officers report that increasing the number of guns on a campus would increase police problems exponentially, especially in ‘active shooter’ situations.” Ninety-five percent of university presidents share his opposition to concealed carrying on campus. 
If we take a sober assessment—one that will be sorely lacking at college keggers—it is not difficult to imagine the ramifications of widespread gun ownership at colleges. Alcohol abuse, bullying and hazing, high population density, and academic stressors are all predictive of violence—and all are ubiquitous on college campuses.
DeFilippis raises a number of arguments in favor of campus gun control. I think that most of DeFilippis's arguments are on solid constitutional ground, and in this post I explore why that is the case. But I also want to point out that there may be limits to the restrictions colleges and universities can place on firearm possession, and if policies extend too far, they may end up violating the Second Amendment.

From a Second Amendment perspective, I think that DeFilippis is, for the most part, on solid ground with his arguments. The Supreme Court, in District of Columbia v. Heller, struck down Washington DC's very stringent ban on firearm possession in the home. The Court held that the Second Amendment protected an individual right to possess firearms in the home for purposes of self defense. In reaching its decision, however, the Court noted that its decision did not cast doubt on "longstanding" restrictions on firearms possession, including gun restrictions in schools.

The Heller Court did not specify whether it was talking about elementary and secondary schools or colleges when it made its point about school gun restrictions. But its language suggests that there is no Second Amendment problem with states or campuses placing restrictions on firearm possession on the campus or in the classroom.

DeFilippis's argument extends beyond the campus and the classroom. His arguments for gun restrictions include citations to statistics on how college students tend to drink heavily and are particularly prone to attempt suicide. DeFilippis also notes that the low privacy of a dormitory environment would make it particularly easy for students to steal firearms from each other.

As I argue in much more detail in this comment, restrictions on firearms in public universities' student housing raise difficult Second Amendment questions. While the Supreme Court noted that its decision would not cast doubt on firearm restrictions on school property, the Court's holding rested on the premise that the Second Amendment, at its core, protects the right to possess firearms in the home for purposes of self-defense. While the right to possess firearms in the home for self-defense may not give students the right to carry guns on campus, students would probably have a stronger argument that they should possess firearms in their "homes." And students who attend college may well call their dormitories "home." So do students have a Second Amendment right to possess firearms in their dorms?

The resolution to this question is uncertain, but the points that DeFilippis raises are still important to consider in the constitutional context. Even if students have a Second Amendment right to possess firearms, there may be limits to the extent of this right if the government has a strong enough interest and the government's restriction on guns is sufficiently narrow. Protecting public safety and preventing student suicides are substantial, if not compelling, government interests, and if the restriction on firearm possession is limited to dormitory environments where population density is higher and privacy is limited, the restriction may be sufficiently tailored to overcome constitutional attacks.

But restrictions on firearms that extend beyond the dormitory environment to apartment-style student housing may run into problems. When student housing becomes less like a college dorm and more like an apartment, students challenging firearms restrictions have a stronger analogy to the homes that were given strong Second Amendment protection in Heller.

Moreover, the question of a firearm restriction in student housing will often be a factual question of how narrowly the regulation is tailored to protect student and public safety. If student housing is located off-campus, if it is in a high crime area, or if it is restricted to graduate students or students with families, these facts may all count against the constitutionality of a restriction on firearms. These students' interest in self-defense will likely be increased, and gun restrictions may be less effective at protecting public safety than gun restrictions in dorms or on campus.

I do not dispute much of what DeFilippis says, as I think that campus restrictions are generally constitutional and are probably conducive to a safer campus environment. And I cannot say with very much certainty whether a student living in a public college or university's apartment-style housing would have a successful Second Amendment argument against rules prohibiting that student from possessing a firearm in his or her apartment. But I think that when campus restrictions on firearms reach into students' living spaces, the Second Amendment argument against the restrictions is strengthened. And the more a restriction on firearm possession looks like the restriction of firearm possession in the home, the more likely it will violate the Second Amendment.

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