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The Michigan appeals court first applied a now-outdated test to Wade’s claims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