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

LEWIS_PP_FINAL (DO NOT DELETE) 7/11/2017 1:40 PM

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”).