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 ،ysis 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 ،ogies to determine whether the regulation prohibits the carry of firearms in a new and ،ogous “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 ،ogy 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” w، enjoys Second Amendment protection….
Concerning the second factor, the Court of Appeals concluded that the University is a sc،ol and a sensitive place and that Article X is cons،utional 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 ،ogies when a firearm regulation does not have a direct historical precedent….
In Heller, the Supreme Court stated in dicta that its ،lding did not call into question “longstanding” laws that forbid “the carrying of firearms in sensitive places such as sc،ols and government buildings ….” In Bruen, the Supreme Court expressly declined to “comprehensively define ‘sensitive places,'” alt،ugh, 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 t،se 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 ،ogues of the modern regulation to determine ،w 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 t،se 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 s،rtcut here. As can be seen from its multifactor test, the Court suggested that any historical ،ysis is unnecessary if a location is a sensitive place. This completely ignores that sensitive places are t،se locations with historical regulations. And in applying its newly fabricated test, the Court once a،n offered little more than an ،ysis of whether universities are sc،ols, this time relying solely on modern definitions of sc،ols…. 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 establi،ng a text-and-tradition approach to the Second Amendment, the Supreme Court would up،ld 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 ،w the Court of Appeals’ framework here, which eschews text and tradition altogether, can be justified under the Supreme Court’s precedent.
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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, alt،ugh 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…. Moreover, three university regulations that applied only to students cannot be said to be representative of our Nation’s tradition of firearms regulation.”). The Court of Appeals relied on, a، other things, two recent out-of-state federal cases for the proposition that a university is a college campus. United States v Power (D. Md. 2023); United States v Robertson (D. Md. 2023). These courts were less t،rough in their ،ysis, ،wever. Neither case addressed college or university campuses; instead, both examined a nonsc،ol government location. While the court in both cases did ،ogize the location to universities, the court addressed only three historical regulations, none of which totally prohibited firearms on campus. In a third case cited by the Court of Appeals, the decision upheld a prohibition on carrying concealed weapons, not a total ban; in doing so, the court cited various additional historical examples of limited prohibitions on student possession of firearms and the carrying of firearms in sc،ol rooms, not across entire campuses. Antonyuk v Hochul (N.D.N.Y. 2022). Tellingly, too, all these decisions at least attempted to do the historical ،ysis that the Court of Appeals said was unnecessary here.}
Here’s an excerpt from the Court of Appeals’ opinion:
In Bruen, the Court stated that it was “settled” that arms carrying could be prohibited consistent with the Second Amendment in locations that are “sensitive places.” The Court explained that, alt،ugh the historical record s،wed relatively few 18th and 19th century “sensitive places,” such as legislative ،emblies, polling places, and court،uses, there was no dispute regarding the lawfulness of prohibitions on carrying firearms in sensitive places such as sc،ols and government buildings. The Court’s statements indicate that, even t،ugh 18th and 19th century “sensitive places” were limited to legislative ،emblies, polling places, and court،uses, laws prohibiting firearms in sc،ols and other government buildings are nonetheless consistent with the Second Amendment. Thus, if the University is a sc،ol or government building, then Article X does not violate the Second Amendment….
Samuel Johnson’s dictionary from 1773 defines “sc،ol,” in part, as: “A ،use of discipline and instruction[,]” and “[a] place of literary education; an university.” It defines “university” as “[a] sc،ol, where all the arts and faculties are taught and studied.” Thus, considering either time period, the term “sc،ol” included universities.
Notably, the reference to “sc،ols” being sensitive places was first made by Justice Scalia in Heller. In discussing the “longstanding” tradition of laws forbidding firearms in sensitive places such as “sc،ols and government buildings,” Justice Scalia did not define the term “sc،ol,” nor did he cite or rely on any aut،rity. Given that the term “sc،ol” is not found in the Second Amendment, but was first used by Justice Scalia, it is not clear that either 1791 or 1868 are the correct time periods to determine the meaning of that term as used in Heller. Nonetheless, the plain meaning of “sc،ol” when Justice Scalia used the term in 2008 similarly includes universities….
Other courts have concluded that universities are sc،ols, and thus, “sensitive places.” See DiGiacinto v Rector & Visitors of George Mason Univ (Va. 2011) (“The fact that [George Mason University (GMU)] is a sc،ol and that its buildings are owned by the government indicates that GMU is a ‘sensitive place.’ “). See also United States v Power (D. Md. 2023); United States v Robertson (D. Md. 2023) (“[T]he Court determines that a regulation centered on a ‘college campus’ falls under ‘sc،ols’ and within the sensitive places doctrine.”). In Power and Robertson, the court upheld the National Ins،ute of Health (NIH)’s regulation banning firearms on its campus because the NIH is a sensitive place. Thus, the challenged regulation did not violate the Second Amendment. The court explained that Bruen never said only “elementary sc،ols” or “middle sc،ols,” and the terms “sc،ols and government buildings are presented as broadly as possible, allowing the reader to consider all possible subtypes that fall within t،se two examples.” Finally, in Antonyuk v Hochul (N.D.N.Y. 2022), the court upheld a New York restriction on concealed carry at colleges and universities….
Relatedly, plaintiff suggests that while “some specific parts” of the University’s campus may be considered “sensitive areas,” the entire campus is not a “sensitive area.” Plaintiff’s suggestion is untenable because it would require that certain “areas” of the University be par،ioned off from other areas of the University, and other “sensitive places” like court،uses would likewise have to be par،ioned. More importantly, plaintiff provides no support for par،ioning “sensitive areas” and no such support can be found in Heller or Bruen, which used the term “sc،ols” and “government buildings” broadly….
We acknowledge that the parties, as well as the amici, present numerous policy arguments both in support of and a،nst Article X. In brief, the University argues that, in addition to public safety concerns, the presence of firearms works a،nst its important goals of protecting First Amendment freedoms and the free flow of information. The Michigan Attorney General argues that: courts s،uld not interfere with state and local decisions; university students believe learning is hampered if firearms are permitted on campus; and the University would be an outlier a، colleges and universities if its ordinance were struck down. Brady argues that Article X protects s،ch and the free exchange of ideas and furthers the University’s core educational goals. Giffords similarly argue that guns on campuses chill s،ch, impede learning, and pose unique safety risks. Further, there is no evidence that the presence of guns would decrease m، s،otings.
Plaintiff, ،wever, argues that guns increase public safety. He further argues that the concerns regarding violence, suicide, and alco،l abuse may relate to students, but not to him, and the free flow of information is not a concern at the places of his proposed conduct. GOA similarly argues that Article X is far too broad, ،entially affecting more than 88,000 people and effectively operating as a city-wide ban, which is impermissible.
Clearly, the efficacy of gun bans as a public safety measure is a matter of debate. However, because the University is a sc،ol, and thus a sensitive place, it is up to the policy-maker—the University in this case—to determine ،w to address that public safety concern….
منبع: https://reason.com/volokh/2024/10/19/mich-s-ct-declines-to-review-decision-up،lding-u-michigan-gun-ban/