AuthorTuck, Jared A.


In 2007, a man used a firearm to claim thirty-three lives on the campus of Virginia Tech, a public university. (1) The next year, the Supreme Court of the United States recognized, for the first time in history, that individuals have the fundamental right under the Second Amendment to keep and bear arms within their homes for the purpose of self-defense. (2) Since 2008, federal circuit courts have either assumed or interpreted the Supreme Court's decision to extend to some sort of individual right to carry firearms in public. (3) For over a decade, the Supreme Court refused to weigh in on public carry; (4) however, the Court recently granted certiorari in New York State Rifle & Pistol Ass'n v. Bruen to resolve this question. (5) Nevertheless, the public carry issue in Bruen does not specifically deal with carrying firearms on college campuses. (6)

This begs the question, do individuals have the fundamental right under the Second Amendment to carry firearms on the campus of a public university? Additionally, can a public university totally ban firearms on its campus without impeding on the constitutional right to keep and bear arms protected by the Second Amendment? This Note will argue that individuals have a narrow, but constitutionally guaranteed, right to carry firearms on the campus of a public university. Therefore, it is beyond the power of states and public universities to totally ban firearms from campus premises.

Part I is the backbone of this Note. Part I provides an overview of the Second Amendment and the federal case law interpreting it. This Part discusses the two most influential Supreme Court decisions on the Second Amendment: District of Columbia v. Heller and McDonald v. City of Chicago. (7) Determining the scope of the Second Amendment necessarily requires an examination of these two cases. The Heller opinion, although its holding is very narrow, is the most detailed guidance lower courts have when determining the Second Amendment's scope. (8) It is beyond the purview of this Note to examine whether Heller and its progeny were correctly decided. Part I will also discuss the various decisions by the federal circuit courts on the issue of carrying firearms in public and why those decisions support a fundamental right to carry in public.

Part II is the heart of this Note. Part II argues that individuals have a slim constitutional right to carry firearms on the campus of a public university. Part II then discusses why the Supreme Court in Heller did not intend public universities to fall within its definition of "sensitive places," although the Court specifically listed "schools and government buildings" as examples. (9) Part II relies on Heller's text and reasoning to support this contention. This Part also uses dictionaries from around the time Heller was decided to parse the meaning of Heller's dicta. Both Heller's historical approach and First Amendment doctrine support the contention that public universities are not sensitive places. Heller and subsequent federal case law interpreting the Second Amendment demonstrate why absolute bans on campus carry fail constitutional muster. Consequently, individuals do not necessarily give up their constitutional right to keep and bear arms simply because they choose to step foot on the campus of a public university.

Part III is the mind of this Note. Part III describes the broad power of regulation that states, and universities, may enjoy without infringing on the individual right to carry firearms on campus. The purpose of Part III is not to describe every permissible way in which states and public universities may regulate firearms on campus. Rather, the goal of Part III is to illustrate that the implied constitutional right to carry firearms on the campus of a public university is extremely narrow. Instead of attempting to hypothetically determine constitutionally permissible regulations on firearms, Part III points to firearms regulations that federal courts have upheld as constitutional. Part III will also analyze and expand on those decisions to provide helpful insight for states and public universities when trying to regulate firearms on campus. This Note provides counterarguments throughout, as many scholars have argued that states and public universities have the power to totally prohibit any and all firearms on campus.


    The Second Amendment reads, "[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." (10) Although the Second Amendment is composed of only one sentence, its meaning and scope are not straightforward. (11) Its language is broad and leaves a reader with more questions than answers. (12) Thus, one must turn to the Supreme Court of the United States for guidance on the meaning of the Second Amendment.

    1. The Seminal Cases: Heller and McDonald

      The Court's most monumental decision interpreting the Second Amendment is District of Columbia v. Heller. (13) This decision laid the foundation for contemporary Second Amendment law. (14) Again, the purpose of this Note is not to decide whether the Court in Heller reached the correct decision. Instead, this Note will accept the

      Heller decision as the seminal Supreme Court case interpreting the Second Amendment.

      Unlike Second Amendment law, the facts of Heller were fairly simple. Dick Heller was a security officer who frequently carried a firearm, specifically a handgun, while performing his job-related duties. (15) However, D.C. law generally prohibited individuals from possessing a pistol within their homes. (16) Heller applied for a special permit to allow him to carry a handgun within his home, but the District of Columbia rejected his application. (17) Subsequently, Heller sued and argued that the D.C. laws were unconstitutional under the Second Amendment. (18) Heller's case made it all the way up to the Supreme Court. (19)

      Justice Scalia wrote the majority opinion, reaching the conclusion that the D.C. laws forbidding Heller from carrying a pistol within his home were unconstitutional under the Second Amendment. (20) To interpret the Second Amendment, the Court split the provision into two parts: (1) the prefatory clause, "[a] well regulated Militia, being necessary to the security of a free State," and (2) the operative clause, "the right of the people to keep and bear Arms, shall not be infringed." (21) The Court said that the prefatory clause merely states the purpose of the operative clause, and it does not limit the right to one that is collective. (22) Therefore, the Court interpreted the Second Amendment to protect an individual right "to keep and bear arms." (23)

      Two years after Heller, the Court took up the case of McDonald v. City of Chicago. (24) Like the District of Columbia in Heller, Chicago and one of its suburbs prohibited the possession of handguns within one's home. (25) The plaintiff's, wishing to possess such firearms, challenged the constitutionality of the pistol bans under both the Second and Fourteenth Amendments. (26) The Court agreed with the plaintiff's. (27) McDonald's legal effect was to incorporate the individual right recognized in Heller to the states through the Due Process Clause of the Fourteenth Amendment. (28)

      It is important to note that Heller's core holding was very narrow. (29) Heller only held that the Second Amendment guarantees a fundamental individual right to carry a handgun, for the purpose of self-defense, within one's home. (30) However, Heller's dicta provides great insight into the scope of the Second Amendment. Specifically, Justice Scalia wrote for the majority:

      Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, 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. (31) In a footnote to the sentence quoted above, the Court noted, "[w]e identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive." (32) However, the Court failed to fully define "sensitive places." (33) The Court provided "schools and government buildings" as examples, but it is unclear from the phrase itself whether public universities are included. (34)

    2. Public Carry: The "Circuit Split"

      Since Heller, the federal circuit courts have struggled to determine whether the individual right guaranteed by the Second Amendment extends outside the home, and what the scope of that right is. (35) Scholars have noted a circuit split and have voiced their opinions on the issue. (36) However, as discussed below, the circuit case law after Heller strongly suggests that an individual constitutional right to carry firearms in public exists.

      1. Circuits Declaring an Individual Right to Public Carry

        In 2012, the Seventh Circuit struck down Illinois laws that effectively prohibited the carrying of loaded firearms in public. (37) The court was clear that the Second Amendment protects an individual right to carry firearms outside the home. (38) Specifically, the majority opined, "[t]he Supreme Court has decided that the amendment confers a right to bear arms for self-defense, which is as important outside the home as inside." (39)

        In 2017, the D.C. Circuit struck down a D.C. law that prevented most residents of the District from carrying a gun in public. (40) The law required applicants wishing to carry in public to demonstrate a "good reason to fear injury" or "any other proper reason for carrying a pistol." (41) The D.C. Circuit read Heller and the Second Amendment more broadly than the other circuits and held that "the individual right to carry...

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