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Michigan Court: University Firearms Ban ‘Consistent With the Second Amendment’

Michigan Court: University Firearms Ban ‘Consistent With the Second Amendment’

The court held universities are ‘sensitive places’ where firearms restrictions were historically permissible and outside the scope of the Second Amendment.

A Michigan appeals court has again ruled against a University of Michigan employee who challenged the institution’s firearms ban. This decision comes after the Michigan Supreme Court ordered the appeals court to reconsider its earlier decision against the employee, Joshua Wade, in light of new legal developments from the U.S. Supreme Court.

Examining Wade’s challenge in light of these developments, the Michigan appeals court still found the university’s policy constitutional because universities qualify as “sensitive places” where the inapplicability of the Second Amendment is “settled.”

The university praised the decision, while Wade’s attorney promised to appeal

“We are heartened to learn that the state Court of Appeals has, once again, upheld the University of Michigan’s policy that bars weapons from our campuses, with some limited exceptions,” University of Michigan Director of Public Affairs Kim Broekhuizen told Legal Insurrection.

“We are respectfully disappointed in the opinion, and we do plan to appeal,” Wade’s attorney Steven Dulan told Legal Insurrection. “[I]t seems clear that the [Court of Appeals] panel created an overly-expansive definition of ‘sensitive place’ that is at odds with the history and tradition of the 2nd Amendment.”

The dispute stretches back almost a decade and started after two landmarks decisions

Wade first took legal action in 2015 after the university refused to grant him an exemption to its policy, which bans firearms possession “while on any property owned, leased, or otherwise controlled by the Regents of the University of Michigan.”

Wade based his initial claim on McDonald v. City of Chicago. In McDonald, the U.S. Supreme Court held the Second Amendment protects the right to keep and bear arms in one’s home for self-defense and against encroachment by state or local governments.

McDonald built on District of Columbia v. Heller, decided two years earlier, where the U.S. Supreme Court first recognized an individual Second Amendment right to keep and bear arms in the home for self-defense. The Heller Court, however, held that right only applied against encroachment by the federal government.

The Michigan appeals court first applied a now-outdated test to Wade’s claims

The Michigan appeals court, when first finding against Wade, applied a two-part test many other courts employed after McDonald to determine the constitutionality of firearms laws. First, the courts would ask “whether the challenged regulation ‘regulates conduct that falls within the scope of the Second Amendment right as historically understood.'”

If yes, the courts would then apply “an intermediate level of constitutional scrutiny . . . and require[] the showing of ‘a reasonable fit between the asserted interest or objective [of the regulation] and the burden placed on an individual’s Second Amendment right.'”

The U.S. Supreme Court overruled the Michigan appeals court, creating a new test in 2022

In 2022, the U.S. Supreme Court rejected this two-part test in New York State Rifle & Pistol Association, Inc. v. Bruen. The Bruen Court instructed lower courts to dispense with the intermediate scrutiny component:

[W]hen the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest.

To successfully defend a regulation of presumptively protected conduct, the government bears the burden of showing

that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.”

The Michigan appeals court found Wade did not satisfy the new test

The Michigan appeals court, applying Bruen, found Wade satisfied the first part of the test. Wade is “an ordinary, law-abiding, adult citizen and, thus, is part of the ‘people’ protected by the Second Amendment” and “handguns are weapons ‘in common use’ for self-defense.”

The Michigan appeals court, however, found Wade did not satisfy the second part of the test. Schools have long been considered “sensitive places” where the government may ban firearms possession, and universities historically fell within the definition of “schools.”


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ThePrimordialOrderedPair | July 25, 2023 at 1:07 pm

the Michigan appeals court still found the university’s policy constitutional because universities qualify as “sensitive places”

“Overly sensitive places” is more like it. Or, in an older parlance, “touched”.

The Bill of Rights doesn’t exist anymore on university grounds. Not just 2A but 1, 4, 5, 6 and 8. The U’s are wanting to “go for O” if they could.

Another reason to avoid colleges across America.

fwiw – scalia made reference to schools as being sensitive areas in his Heller opinion.

Caveat – “sensitive area” may not have been the exact phrase he used though as I recall it was somewhat similar

Caveat #2 – Scalia did not define or limit the term schools in Heller, though the connotation could include colleges , though the more likely use of schools would mean k-12.

    CommoChief in reply to Joe-dallas. | July 25, 2023 at 3:20 pm

    Exactly. Someone hears the word ‘school’ and an image of a K-12 school comes to mind. Hear ‘University’ and a completely different image comes to mind. They are not synonyms. One is populated overwhelmingly by minor children students, the other is populated near exclusively by adult age students. Not to mention that showing firearms on campus in living memory in Michigan probably wouldn’t be all that difficult.

    geronl in reply to Joe-dallas. | July 25, 2023 at 3:20 pm

    The Constitution applies to every inch of this country.

      MarkS in reply to geronl. | July 25, 2023 at 3:36 pm

      In theory, yes, in practice, NO!

      txvet2 in reply to geronl. | July 25, 2023 at 6:16 pm

      But not to children younger than 12, as far as the 2nd Amendment is concerned. If you dig far enough you’re going to find a limitation that is essentially universally accepted.

        CommoChief in reply to txvet2. | July 25, 2023 at 6:45 pm

        Like peaceful assembly. There are limits to where one can exercise this right. Can’t venture just any old where you choose to hold your peaceful assembly.

          txvet2 in reply to CommoChief. | July 25, 2023 at 8:39 pm

          Especially when you have a few government agents spread around to stir up trouble.

          CommoChief in reply to CommoChief. | July 26, 2023 at 8:05 am

          Sure. Just like free speech is protected. You can say what you want but you are not protected from other folks reaction to your speech.

          Burning the US Flag is protected as speech. However, if one chooses to do so in front of the local VFW one isn’t protected from the immediate consequences.

          If the local VFW members choose to to rebut that physical act of free expression with an expressive physical act of free speech of their own choosing …well it illustrates time and place do matter.

      Subotai Bahadur in reply to geronl. | July 25, 2023 at 8:19 pm

      We are in an age of transition. Wherever the Left rules, they are claiming the right to ignore the courts and plain language of the Constitution and precedent if it is not what they want. And to impose their will on everyone.

      They call it “Popular Constitutionalism”.

      Subotai Bahadur

    And Scalia’s statement doesn’t even hold weight with me, as it’s an outside imposition on the Constitution. It was based entirely on the feels of having guns around kids and ignored history and the Constitution. Being on school grounds should not exempt one from the Constitution.

    Edward in reply to Joe-dallas. | July 26, 2023 at 7:05 pm

    And yet in my youth (somewhat more than 60 years ago, so historical) in school it was normal for the boys to bring firearms to school. They would be in their vehicles or lockers so they could go hunting after school. Or they were on the HS rifle team and practiced. Besides Bruen built on Heller but Heller does not bind decisions under Bruen.

2smartforlibs | July 25, 2023 at 1:43 pm

Sensitive place= SOFT TARGETS

“Sensitive Place” AKA Target rich environment.

I still don’t understand which part of “shall not be infringed” is so hard to grasp.

    DaveGinOly in reply to UJ. | July 25, 2023 at 11:37 pm

    SCOTUS has even called the 2nd Amendment an “unqualified command.” Then why did they invent qualifications for it? The qualifications are made up BS, every single one of them.

BierceAmbrose | July 25, 2023 at 2:03 pm

This Motte and Bailey BS is tiresome.

— From the statute: “…any property owned, leased, or otherwise controlled by the Regents of the University of Michigan.”

— From the article describing the judgement: “Schools have long been considered “sensitive places””

A University is not a “school” in the sense of compelled attendance, by kids, who get shot up there in bulk from time to time, tho less than the screaming meemies would have us believe. What sense of “school” is such a special place?

Property controlled by the regents is way, way, way more than places where groups of people go to get educated indoctrinated. That’s way more than any understanding of “school.” (BTW, why *would* they write it that way?)

Motte and Bailey BS, right in the decision.

    The only area in any university campus which may be considered sensitive would be the feelings of the students when confronted with logic

The difference between Colleges/Universities and other schools is profound. The vast majority of students are adults actually entitled to purchase a firearm.

Funny that ‘tradition’ thing in overcoming a the 2nd Amendment…

Traditionally, women were not allowed to vote so what difference does the 19th Amendment make if a state wants to deny women the vote?

    DaveGinOly in reply to George S. | July 25, 2023 at 11:42 pm

    The rule also presumes that any “traditional” restriction was, itself, constitutional, even when it may never have been challenged in court (therefore never having had to pass a judicial review). (And even if a law passes judicial review, that doesn’t mean it’s not unconstitutional. It only means the law isn’t unconstitutional for any of the reasons raised by the pleader. Any law may be unconstitutional based on reasons never propounded in court. Not having been properly/successfully challenged is not evidence a law is constitutional.)

I forgot the part of the second amendment that excludes “sensitive places” from Constitutional rule.

We are being governed by morons, …nowhere in the Constitution are the exercise of our rights limited to location

Fat_Freddys_Cat | July 25, 2023 at 3:55 pm

If this stands the Democrats will declare the entire country a “sensitive place”.

universities are ‘sensitive places’
Yeah, I’m still a no-go on “sensitive” places. About the only ones I could countenance are places where it’s actually unsafe – an MRI room, an insane asylum… bathrooms and dance clubs if you’re a cop or “agent”.

henrybowman | July 25, 2023 at 5:05 pm

Texas Tribune, July 2016:

Regular people from all over Austin had grabbed their guns from their trucks or homes that day and rushed to campus to fire at [mass shooter Charles] Whitman from the ground. Their bullets pelted the [University of Texas] tower, kicking up clouds of limestone. At times, witnesses said, the campus felt like a war zone, but with armed frat boys and hunting enthusiasts instead of soldiers.

It was in essence what gun rights activists would yearn for decades later whenever a new mass shooting shocked the nation — multiple “good guys with guns” trying to end the violence. That kind of thinking helped inspire state legislators to pass a law in 2015 allowing people to take guns into university buildings in Texas. The law goes into effect Aug. 1, exactly 50 years after Whitman’s rampage.

Historically traditional my shiny metal ass.

Memo for MI appeals court: Virginia Tech was also a “sensitive place” back in 2007. However, that didn’t stop a South Korean nutter student armed with two pistols from killing and wounding 56 other unarmed students and faculty. Ruminate on that, you robed idiots.

What about ‘shall not be infringed’ is so hard for people, esp. those that hold seats as Judges, to understand? They are very simple words, that even a person as simple as I am, with a limited, non college education, can understand.

Means quite simple, ‘It’s mine, you can’t have it, you can’t take it, and you can’t stop me from having it, period, in any way, manor, shape or form’. Shall not be infringed. Seems pretty simple to me….but then, I’m a simple guy.

I take exception to the comment that schools have historically prohibited guns. In fact, I’d say the opposite. When I went to school, students took guns to school and they were often kept in their vehicles in the school parking lot. I actually refinished one in a shop class. The school had a rifle team and provided the guns for those teams, as well as having a shooting range in the school. There was never a school shooting.