Don't Take Your Guns to School (in Nebraska): Assessing the Constitutionality of the Private Universities' Exemption from the Concealed Handgun Permit Act

• Publication year: 2022

48 Creighton L. Rev. 113. DON'T TAKE YOUR GUNS TO SCHOOL (IN NEBRASKA): ASSESSING THE CONSTITUTIONALITY OF THE PRIVATE UNIVERSITIES' EXEMPTION FROM THE CONCEALED HANDGUN PERMIT ACT

DON'T TAKE YOUR GUNS TO SCHOOL (IN NEBRASKA): ASSESSING THE CONSTITUTIONALITY OF THE PRIVATE UNIVERSITIES' EXEMPTION FROM THE CONCEALED HANDGUN PERMIT ACT

Joe W. Eden(fn*)

I. INTRODUCTION

From the time the United States Supreme Court held that the Second Amendment guarantees of liberty applied equally to both state and federal regulations in McDonald v. City of Chicago,(fn1) courts around the country have attempted to decipher just which guarantees are protected by the amendment.(fn2) Widely regarded as a guiding light on the subject, the recent Supreme Court decision in District of Columbia v. Heller (fn3) is often cited as an essential component to understanding the right to keep and bear arms.(fn4) Courts have attempted to navigate the ambiguities of this decision in various ways and have often arrived at highly unharmonious conclusions.(fn5) One area of potentially protected conduct that the Court in Heller alluded to, but did not extensively address, is the carrying of concealed handguns.(fn6) Most states have adopted some form of statutory provision addressing the issue, though most of these laws went into effect before the Second Amendment guarantees were held to apply to the states.(fn7)

In 2006, the State of Nebraska addressed the issue of carrying concealed hand guns by enacting section 15 of the Concealed Handgun Permit Act(fn8) ("CHPA"), granting all licensed permit holders the right to carry a concealed handgun anywhere in the state with certain ex-ceptions.(fn9) One exception to the statutory guarantee prohibits permit holders from carrying a concealed handgun on publicly or privately owned school property, including universities and postsecondary professional schools.(fn10) In effect, this provision prohibits all educational institutions from developing and implementing their own policies regarding student concealed carry and encompasses higher education institutions where most students are above the age of majority.(fn11)

When it was adopted, the CHPA was not subject to the regulatory restrictions guaranteed by the Second Amendment, but in the wake of the Heller and McDonald decisions, certain provisions of the CHPA no longer pass constitutional muster.(fn12) This Note will provide a detailed explanation of why the private schools clause of the CHPA is unconstitutional, beginning with an in-depth discussion of recent Supreme Court jurisprudence.(fn13) This Note will then analyze the varying and incompatible decisions rendered by the lower federal courts, which have sought to understand and interpret the rulings given by the Supreme Court.(fn14) Next, this Note will explain why the Second Amendment guarantees apply to the states and clarify what exactly those guarantees entail.(fn15) After observing that the Second Amendment is subject to certain limitations, this Note will demonstrate how private postsecondary educational facilities do not fall within those limitations and therefore the institutions should be free to construct their own policies.(fn16) Finally, this Note will demonstrate how prohibiting private post-secondary educational facilities from developing such policies destroys the individual right to carry a concealed handgun, a right which is protected by the Second Amendment to the United States Constitution.(fn17)

II. THE CONCEALED HANDGUN PERMIT ACT AND LEGISLATIVE HISTORY

Prior to the enactment of the section 15 of the Concealed Handgun Permit Act(fn18) ("CHPA") in 2006, Nebraska was one of only four states without a legal provision allowing citizens to carry concealed handguns.(fn19) With the enactment of the CHPA, Nebraska became the thirty-ninth state to adopt a right-to-carry statute allowing licensed permit holders to carry a concealed handgun on public grounds anywhere within the state.(fn20) In effect, the CHPA provides that a licensed permit holder has the right to carry a concealed handgun in public within the State of Nebraska, with certain provisional limitations.(fn21) These limitations include police stations, prisons, courtrooms, polling places, athletic events, places of worship, hospitals, political rallies or fundraisers, or any place that derives more than half of its income from the sale of liquor.(fn22) Possibly the most extensive and well-defined limitation is the limitation extended to schools, including both public and private universities operating within the state.(fn23) During a floor debate on January 11, 2006, Senator Combs directly stated that all universities, both public and private, were intended to be exempt from the CHPA, and even directly referenced Creighton University, beauty schools, and preschools as institutions that fall outside the protections of the CHPA.(fn24)

Three years after its enactment, the CHPA was amended to: allow for security personnel at churches to carry concealed handguns; allow for concealed handguns to be kept in vehicles which are parked on the property of establishments otherwise exempt from the CHPA; and to establish a system of reciprocity whereby the State of Nebraska would recognize permits issued by other states.(fn25) The amendment further provided for a more structured and systematic definition of what constituted a school or university.(fn26) This particular amendment was proposed to, and unanimously voted out of, the Judiciary Committee in the wake of an incident in which two students from the University of Nebraska-Lincoln carried firearms across campus and were arrested for unlawful possession of a firearm on school grounds.(fn27) Because the language in the CHPA was ambiguously construed to limit the application from being extended to colleges and universities, the charges were dropped and the two students were not charged.(fn28) As a result, the Judiciary Committee voted unanimously to refine the definition of schools to be less ambiguous and as Senator Avery described, clarify current law.(fn29) The amendment was voted on and passed without opposition.(fn30)

III. BACKGROUND

A. PULLING THE TRIGGER ON DEFINING THE SECOND AMENDMENT: DISTRICT OF COLUMBIA V. HELLER ATTEMPTS TO RESOLVE AMBIGUITY IN MEANING OF "SHALL NOT BE INFRINGED"

In District of Columbia v. Heller,(fn31) the United States Supreme Court struck down Washington, D.C.'s prohibition on handgun possession within the home as unconstitutional under the Second Amend-ment.(fn32) The District of Columbia effectively banned the possession of handguns by criminalizing the carrying of an unregistered firearm and making it impossible to register any handgun.(fn33) Furthermore, Washington, D.C. criminalized the possession of any lawfully owned firearm (e.g., long guns which had been lawfully registered) within the home unless the firearm was disassembled or otherwise made inoperable by use of a trigger lock or other device of a similar nature.(fn34)

Dick Heller, a special police officer working at the Thurgood Marshall Judiciary Building, applied to obtain a registration certificate for a handgun, which he intended to keep in his home.(fn35) The District of Columbia refused to grant his application and he, along with five other Washington, D.C. residents wishing to lawfully possess a handgun within their homes, brought suit in the United States District Court for the District of Columbia.(fn36) Respondents sought to enjoin the city from continuing to deny the lawful registration of handguns and the requirement that firearms be stored with trigger locks in-stalled.(fn37) The district court dismissed the complaint on the grounds that the citizens had no Second Amendment claim because: (1) there is no constitutionally protected right to bear arms when not actively participating in a militia; and (2) the scope of the term militia does not encompass every armed member of society.(fn38)

The United States Court of Appeals for the District of Columbia overturned this ruling in Parker v. District of Columbia (fn39) following an appeal by all six original plaintiffs.(fn40) The appellate court decided that the Second Amendment protections guaranteed a right to possess certain firearms within the home for purposes of self-defense.(fn41) The court further determined that the District of Columbia restrictions on lawfully owning a firearm, as well as bans on keeping an operable firearm in the home, were in violation of those constitutionally protected rights.(fn42)

The United States Supreme Court granted certiorari in Heller to examine the District of Columbia's regulations within the context of the Second Amendment.(fn43) Regarding an individual right to keep and bear arms as opposed to rights reserved solely to a well-regulated militia the court found that the phrase, "the people," is unambiguous and should be interpreted to mean all members of the political commu-nity.(fn44) Furthermore, the Court found that the phrase "bear arms" has an inherent meaning which refers to the carrying of a weapon for the purpose of confrontation.(fn45) The Court followed this analysis by stat-ing that when all the elements of the language of the Second Amendment are synthesized with this understanding, they afford all Americans the right to carry and possess weapons for use in self-defense.(fn46)

While the Court found that the individual right to carry and...