Michigan Supreme Court kicks campus carry ban case back to lower court

(AP Photo/John Mone)

A challenge to the University of Michigan’s ban on firearms on campus is still underway after the state’s Supreme Court sent the case back to the Court of Appeals with instructions to re-consider its ruling in light of the Bruen decision.

At first glance, this looks like a relatively easy case. The Supreme Court said that “schools” were among those few “sensitive places” where there’s a historical tradition of banning firearms, so that must mean that the university’s gun ban is in-line with the Constitution, right? As Michigan Supreme Court Justice David Viviano wrote in a concurrence to the order sending Wade v. University of Michigan back to the court of appeals, it’s not nearly as cut and dried an issue.

To support its threshold analysis, the Court of Appeals relied on the statement in Dist of Columbia v Heller, 554 US 570, 626-627 (2008), that the Second Amendment did not disturb “longstanding prohibitions on . . . laws forbidding the carrying of firearms in sensitive places such as schools and government buildings . . . .” In the present case, the Court of Appeals’ entire “historical analysis” was to examine one dictionary from 1828 to determine whether universities were considered “school[s]” in 1868.

Even if one concludes that the Court of Appeals reached the correct result, this paltry review of the main question is inadequate. Moreover, it is not at all apparent that Heller’s brief discussion of sensitive places was intended to establish a rule that all entities historically known as “schools” could permissibly ban firearms, meaning the only question that would remain for future cases is whether the entity at issue was considered a “school.” Nor is it even clear that the Court meant to include universities and colleges in its reference to “schools,” let alone to say that such locations can completely ban firearms. See Note, Guns on Campus: Continuing Controversy, 38 J C & U L 663, 667-668 (2012) (noting that Heller did not address guns on university campuses or define “schools” to include higher education).

Viviano went on to describe two different areas of historical analysis that he’d like to see from the appellate court. First, whether there were any similar regulations dealing with bearing arms on university and college campuses at the time the Second and Fourteenth Amendments were ratified. Viviano notes that in his own initial analysis he’s found some laws that contain “partial restrictions”, but none that come close to the complete ban in effect on the University of Michigan campus.

The second line of historical analysis suggested by Viviano is whether or not traditional college campuses are even a good historical analogue for “large modern campuses like the University of Michigan’s.” Viviano wonders whether modern campuses are “so dispersed and multifaceted that a total campus ban would now cover areas that historically would not have had any restrictions?”

The University of Michigan itself occupies nearly one-tenth of Ann Arbor. Many areas on campus, such as roadways, open areas, shopping districts, or restaurants, might not fit the “sensitive place” model suggested by Heller—they may instead be more historically analogous to other locations that did not have gun restrictions. And because the campus is so entwined with the surrounding community, the ban might also burden carrying rights on locations outside campus, as many individuals will regularly go from campus to off-campus environments, even in a single trip; because they cannot bring a gun on campus, they will not feasibly be able to bring the gun to the off-campus locations either.

It’s an excellent point, and one that strikes at the heart of several of the post-Bruen restrictions on the right to carry that we’ve seen implemented or introduced in blue states over the past four months. Bans on concealed carry in public transportation, for example, not only prevent those who rely on it from being able to bear arms while on a city bus or subway, but throughout the course of their daily routine as well.

With the case going back to the court of appeals it will likely be several months before we get a decision, and Justice Viviano’s concurrence suggests that upholding the U of M gun ban won’t be as easy as gun control activists are hoping for. We’ll keep an eye on this case for any future developments, but in the meantime Michigan gun owners should be aware that the ban remains in effect for the time being.

A note from Cam: Now that the midterms are over, we need to look ahead to the threats gun owners face in Washington, D.C. and statehouses around the country, as well as support pro-Second Amendment officials and legislation to protect and secure our right to keep and bear arms. If you want real in-depth analysis and exclusive content and wish to support our mission, join BearingArms VIP today and use promo code VIPWEEK to receive 45% off your membership!