Crossfire on Compulsory Campus Carry Laws: When the First and Second Amendments Collide

Author:Shaundra K. Lewis
Position:Associate Professor of Law at Thurgood Marshall School of Law at Texas Southern University
Pages:2109-2144
SUMMARY

Despite college communities' overwhelming opposition to firearms on campuses, states are continuing to pass legislation forcing public higher education institutions to permit the secret carrying of firearms inside academic buildings and classrooms at an alarming rate. Many students, faculty, and administrators believe the presence of firearms will stifle their First Amendment right to free speech ... (see full summary)

 
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2109
Crossfire on Compulsory Campus Carry
Laws: When the First and Second
Amendments Collide
Shaundra K. Lewis*
ABSTRACT: Despite college communities’ overwhelming opposition to
firearms on campuses, states are continuing to pass legislation forcing public
higher education institutions to permit the secret carrying of firearms inside
academic buildings and classrooms at an alarming rate. Many students,
faculty, and administrators believe the presence of firearms will stifle their
First Amendment right to free speech and academic freedom, as the mere
presence of firearms will create an uncomfortable learning and working
environment. Additionally, it will make some professors and students more
reticent to discuss controversial and sensitive issues out of fear that heated
debates could become violent. On the other hand, campus carry proponents
maintain they have a Second Amendment right to carry a firearm for self-
defense. Thus, the campus carry issue raises two competing constitutional
claims. This Article is one of the first to posit that the First Amendment rights
to free speech and academic freedom trump the Second Amendment right to
bear arms in the campus carry context. In making this case, Part II identifies
the states with campus carry laws and shows how there is a frightening trend
toward arming campuses. Part III cogitates several First Amendment
challenges that could be mounted against this legislation. Part IV
contemplates the Second Amendment argument that individuals have a right
to carry on campus for self-protection. Part V explains why the First
Amendment claim should prevail. Finally, Part VI provides guidance on how
to survive on an armed campus.
*
Associate Professor of Law at Thurgood Marshall School of Law at Texas Southern
University; J.D., St. Thomas University School of Law, Summa Cum Laude, 1998; B.A., Stetson
University, 1995. This Article was supported by a summer research grant from Thurgood
Marshall School of Law at Texas Southern. I would like to thank Professor Angela Onwuachi-
Willig of the University of California Berkeley School of Law and the participants of the 2016
Lutie Lytle Workshop for their support. Special thanks goes to Professor Elise Boddie of Rutgers
School of Law–Newark for her invaluable feedback and to Mr. Daniel De Luna for his res earch
assistance.
2110 IOWA LAW REVIEW [Vol. 102:2109
I. INTRODUCTION ........................................................................... 2110
II. STATES IMPOSING BULLETS AND BOOKS BY LEGISLATIVE
FIAT ............................................................................................. 2113
III. FIRST AMENDMENT CONCERNS ABOUT LEGISLATION ................ 2117
A. HOW GUNS VIOLATE ACADEMIC FREEDOM .............................. 2117
1. Institutional Academic Freedom ............................... 2118
2. Individual Academic Freedom ................................... 2122
i. Faculty’s Right to Academic Freedom ........................ 2122
ii. Students’ Right to Academic Freedom ........................ 2127
B. HOW GUNS COMPEL SPEECH .................................................. 2130
IV. SECOND AMENDMENT ARGUMENT FOR ARMING CAMPUSES ....... 2133
V. RESOLUTION OF POTENTIAL CONFLICT BETWEEN FIRST AND
SECOND AMENDMENTS ............................................................... 2134
A. NO CONSTITUTIONAL RIGHT TO CARRY CONCEALED
FIREARMS ON CAMPUS ........................................................... 2135
B. OTHER JUSTIFICATIONS FOR CHOOSING THE FIRST OVER
THE SECOND AMENDMENT ..................................................... 2137
VI. CONCLUSION .............................................................................. 2141
“Even to the extent one considers bearing arms desirable, speech remains more
important for individuals and society: How many avid hunters would give up
communication before they gave up hunting?”1
I. INTRODUCTION
The issue of whether concealed handgun licensees (“CHLs”) should be
permitted to carry firearms inside higher education academic buildings
(including classrooms) has been vociferously debated over the past decade.2
1. Gregory P. Magarian, Speaking Truth to Firepower: How the First Ame ndment Destabilizes the
Second, 91 TEX. L. REV. 49, 57 (2012).
2. See Ryan Phillips, Georgia Governor Vetoes ‘Campus-Carry’ Concealed Gun Bill, ASSOCIATED PRESS
(May 3, 2016, 2:39 PM), http://www.seattletimes.com/nation-world/georgia-governor-vetoes-campus-
carry-concealed-gun-bill (reporting that all 29 of Georgia’s public college and university presidents and
their police chiefs oppose a proposed campus carry bill); Point Blank: Guns Don’t Belong on College
Campuses—Here’s Why, PUBLICHEALTHWATCH (Mar. 10, 2014), https://publichealthwatch.wordpress.
com/2014/03/10/point-blank-guns-dont-belong-on-college-campuses-heres-why. As a testament to
how visceral the campus carry debate has become, the Students for Concealed Carry organization
personally attacked a University of Houston professor’s character on their website for opposing campus
carry by pointing out an old domestic violence report that was filed against him. Admin, Does a Prominent
Anti-Campus Carry Activist Have a History of Violence Against Women?, STUDENTS FOR CONCEALED CARRY
(Mar. 21, 2016), http://co ncealed campus. org/201 6/03/an ti-camp us-carr y-advoc ate-history-of-
violence-against-women.
2017] CROSSFIRE ON COMPULSORY CAMPUS CARRY LAWS 2111
Yet, despite the numerous voices expressing fervent dissent to such a measure,
some state legislatures have passed laws mandating the allowance of firearms
in classrooms as a measure taken to prevent school shootings and other
campus violence.3 These laws, hereinafter referred to as “compulsory campus
carry laws,” put public higher educational institutions in a conundrum—
either: (1) follow a law that the overwhelming majority on campus disagree
with;4 or (2) disobey the law by continuing to ban firearms and potentially risk
a reduction in state funding or another financial penalty.5
But campus carry laws implicate more than just Second Amendment
rights. American colleges and universities, and the students and faculty that
inhabit them, enjoy special protections designed to protect the ability to teach
and learn freely.6 Requiring the allowance of firearms in classrooms and
academic buildings will have a chilling effect on academic speech in many
different ways, including students’ in-class expression, professor and student
engagement, professor and professor interaction, and administrator and
professor relations. Accordingly, campus carry laws may violate First
Amendment protections of academic freedom.
For example, knowing that a student may be concealing a firearm could
cause a professor to feel uncomfortable giving a student a failing grade
because this could result in a violent confrontation, and even death.7 Indeed,
it is not outside the realm of possibility for a student to shoot a professor over
a grade. In 2002, a disgruntled Appalachian School of Law student who was
academically dismissed shot and killed one of his law professors and the law
3. See Firmin DeBrabander, Campus Carry vs. Faculty Rights, INSIDE HIGHER ED (Mar. 19, 2015),
https://www.insidehighered.com/views/2015/03/19/essay-movement-allow-guns-campuses-violates-
academic-freedom.
4. See James H. Price et al., University Presidents’ Perceptions and Practice Regarding the Carrying
of Concealed Handguns on College Campuses, 62 J. AM. C. HEALTH 461, 463 (2014) (finding in a
scientific study that 95% of 401 college and university presidents randomly surveyed were
unsupportive of the idea of students, faculty, and visitors carrying concealed firearms on campus,
and that “most faculty (92%) and students (89%) would feel unsafe if faculty, students, and
visitors carried concealed handguns on campus”).
5. See Kathy L. Wyer, Note, A Most Dangerous Experiment? University Autonomy, Academic
Freedom, and the Concealed-Weapons Controversy at the University of Utah, 2003 UTAH L. REV. 983, 987
(describing how the University of Utah’s refusal in 2001 to implement Utah’s campus carry law
resulted in a senator introducing a bill to reduce the University president’s salary by half).
6. Id. at 1008–16.
7. Manny Fernandez & Dave Montgomery, Texas Lawmakers Pass a Bill Allowing Guns at Colleges,
N.Y. TIMES (June 2, 2015), https://www.nytimes.com/2015/06/03/us/texas-lawmakers-approve-bill-
allowing-guns-on- campus.html (“Professors said they worry about inviting a student into their offices
to talk about a failing grade if they think that student is armed.”); Alexandria Samuels, University of Texas
Dean Resigns Over Campus Carry Concerns, USA TODAY C. (Feb. 28 2016, 11:21 AM), http://college.
usatoday.com/2016/02/28/ut-dean-resigns-camupus-carry (reporting how the University of Texas’s
Professor Emeritus Daniel Hamermesh resigned because of Texas’s Campus Carry Law, stating in his
resignation letter that “my perception is that the risk that a disgruntled student might bring a gun into
the classroom and start shooting at me has been substantially enhanced by the concealed-carry law”).

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