SEATTLE UNIVERSITY LAW REVIEWVolume 35, No. 1FALL 2011
The Second Amendment Goes to College
Joan H. Miller(fn*)
I. INTRODUCTION
Historically, college campuses have served as forums for war pro-tests,(fn1) academic experimentation,(fn2) and the free exchange of ideas.(fn3) Although demonstrations like those in the 1960s do not seem to be the primary method of political protest among students anymore, college campuses are inherently politically charged places used for the expression of many diverse opinions-nearly all American colleges host student political groups or issue-based groups that seek to bring awareness to a particular cause. When protests do happen, students sometimes get violent or the situation becomes chaotic, resulting in sit-ins, class disruptions, severe tensions between students and administrators, and even student ar-rests.(fn4) Despite these sometimes negative results, colleges and universities are well-aware that learning depends on the free exchange of ideas.(fn5) In fact, the learning environment that colleges seek to maintain depends on the freedom to speak about controversial issues and the freedom to hear differing opinions.(fn6)
For these reasons, colleges and universities are unique public spaces. They are devoted to creating an atmosphere conducive to learning, thereby ensuring a quality education.(fn7) Colleges create this atmosphere through methods such as tenure,(fn8) protecting freedom of speech and assembly on portions of their campuses,(fn9) and establishing "gun-free zones" so students feel safe to express themselves.(fn10) Unlike public parks, for example, colleges and universities have not traditionally been open to the public, and they provide more than just opportunities for recreation. Rather, colleges have an interest in seeing their students well-educated, enabling them to become functioning members of our society.(fn11)
A good education requires students and faculty to feel safe and comfortable when expressing their ideas or making mistakes in the classroom. In order to provide this safe academic learning environment, the vast majority of colleges prohibit carrying or possessing guns on their campuses.(fn12) The learning environment could be severely compromised if students or faculty were potentially carrying a firearm because some individuals may feel threatened or intimidated, which could very well inhibit their ability to learn.(fn13)
The notion that universities should provide an environment where students and faculty feel safe enough to freely exchange ideas has been advocated for in the context of the First Amendment. For example, in response to Yale University Press's decision to remove images of Mohammed from a scholarly text, several academic and free-speech groups urged higher-education institutions to "stand up for certain basic principles: that the free exchange of ideas is essential to liberal democracy; that each person is entitled to hold and express his or her own views without fear of bodily harm . . . ."(fn14) These principles should also be upheld within the context of deciding how guns should be regulated on college campuses.
Finally, implicit in the concept of the academic freedom doctrine is the notion that colleges and universities require autonomy and should have the power to dictate policy choices on their campuses.(fn15) For example, the U.S. Supreme Court has declared that "the essentiality of freedom in the community of American universities is almost self-evident . . . . To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation."(fn16) It follows then that the academic freedom doctrine necessarily "restricts the scope of permissible legislative interference with public [colleges and] universities."(fn17)
Traditionally, regulating firearms has been under the authority of the states.(fn18) But two recent judicial opinions have changed Second Amendment jurisprudence and may affect how public colleges and universities regulate guns on their campuses. In District of Columbia v. Heller, the Supreme Court settled the debate as to whether the Second Amendment was a collective right related solely to state militia service, or whether it provided an individual right to keep and bear arms.(fn19) Specifically, the Court held that individual self-defense is "the central component" of the Second Amendment,(fn20) and law-abiding citizens must be permitted "to use arms in defense of hearth and home."(fn21) In dicta, however, the majority stated that "[l]ike most rights, the right secured by the Second Amendment is not unlimited,"(fn22) and it expressed support for traditional exercises of police power, including, but not limited to, "the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings . . . ."(fn23)
Two years later, in McDonald v. Chicago, the Court incorporated the Second Amendment right recognized in Heller against the states through the Due Process Clause of the Fourteenth Amendment.(fn24) The Court reiterated its assurance that "longstanding regulatory measures" such as the prohibition of firearms in sensitive places would not be imperiled by either its holding in Heller or its incorporation of the Second Amendment.(fn25) But several questions remain. Do prohibitions of guns on college campuses infringe on a fundamental right? What standard of review should lower courts use when evaluating gun regulations? What types of regulations can survive? What should colleges do to maintain authority over their campuses? Because incorporation may imply that the right is fundamental, McDonald poses a legitimate threat to a public college's interest in prohibiting firearms on campus.
This Comment will argue that because McDonald's holding limits the right under the Second Amendment to protect individuals using guns in defense of "hearth and home," public colleges and universities are constitutionally permitted to continue prohibiting guns on their campuses. And although the Court did not explicitly state the standard of review that should apply when determining whether a regulation unconstitutionally infringes on the right to keep and bear arms,(fn26) this Comment will argue that prohibition of guns on campuses and even in residence halls should survive strict scrutiny because the policy is narrowly tailored to achieve compelling interests in academic freedom and public safety.
Part II summarizes Heller, McDonald, and incorporation against the states, in general. Part III discusses recent lobbying efforts and explains how the McDonald case implicates public colleges and universities. Lastly, in Part IV, I argue that intermediate scrutiny should be the standard of review, but even if the courts use strict scrutiny, gun-free zones on public college campuses should be held constitutional.
II. The Second Amendment Protects an Individual Right to Keep and Bear Arms in Self-Defense of Hearth and Home
In this Part, I will summarize the holding in Heller and highlight some of the dicta that have left lower courts with more questions than guidance on the Second Amendment. Then I will briefly discuss the incorporation doctrine, the majority opinion in McDonald, and their implication on state regulation of firearms.
A. District of Columbia v. Heller
In spite of the Supreme Court's previous jurisprudence on the Second Amendment,(fn27) the majority in Heller found that the Second Amendment was an individual right rather than a collective right dependent upon service in a well-regulated militia.(fn28) The Court held that even if the purpose of codifying the Second Amendment was to preserve the state militia, individual self-defense was nevertheless the "central component" of the right.(fn29) In Heller, the gun-control regulation at issue was the essential prohibition of handguns within the District of Columbia.(fn30) The District made it a crime to carry any unregistered firearm and refused to register any handguns thereby making them unlawful.(fn31) The statute further required all lawfully registered firearms to be either unloaded or bound by a trigger lock.(fn32) The Court reasoned that the D.C. regulation prohibited from the home "the most preferred firearm in the nation to keep and use for protection" and therefore failed strict scrutiny.(fn33) Accordingly, it held that a total ban on the possession of handguns in the home unconstitutionally infringed on the right of a law-abiding individual to keep and bear arms for self-defense.(fn34)
The Heller Court declined to specify the standard of review lower courts should use when determining whether a gun regulation impermiss-ibly infringes on an individual's Second Amendment right. In dicta, however, the majority stated that the right is "not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose."(fn35) Furthermore, the Court stated that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."(fn36) The Court even went so far as to identify these regulatory measures-now known as the Heller Safe...
