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Legal Experts: Campus Gun Bans Flawed, Unconstitutional

A letter signed by 327 university leaders across the nation over the last month that calls on President Obama to oppose legislation allowing guns in classrooms and college campuses is actually a misguided, flawed – and frankly unconstitutional – response to the Newtown school shooting massacre, two George Mason University legal experts argue.

In interviews with The College Fix, Daniel Polsby, dean of the law school at George Mason University, and Nelson Lund, a law professor there, said calls en masse by campus leaders to banish guns on college grounds is perhaps an understandable emotional response to the tragedy, but not one that holds water legally, nor likely to ensure it doesn’t happen again.

Some campus firearm regulations “violate the constitutional rights of many students and employees, and increase the risk that innocent people will be slaughtered,” Lund said.

“Virtually every mass shooting in recent decades has occurred in a ‘gun-free zone,’ which is not likely a coincidence,” he said. “The massacre in Aurora, Colorado, did not occur at the theater nearest the shooter’s home. Nor at the largest theater in the area. Rather, it apparently occurred at the only theater in the area that banned firearms from the premises. ‘Gun-free zones’ might more accurately be described as ‘safe for mass murder’ zones.”

If university presidents truly wanted to take “thoughtful and urgent” measures, as stated in their letter, then they should start by having firearm restrictions at universities “rescinded or modified to respect the constitutional rights of its students and employees,” Lund suggested.

Polsby, the law school dean at George Mason University, adds that he has tried to bring people to “realize that what laws one has in the books and what behaviors one observes in the field are not always connected by a straight line.”

In other words, banning guns on campuses ipso facto does not mean a deranged lunatic will not bring a gun on campus and attempt to shoot and kill people. The proposal is not a solution.

Polsby said while he feels the result of such gun control policies will disappoint their advocates in the end, he does “understand – and share – the presidents’ sincere desire to live in a better world.”

Underscoring the arguments made by the two George Mason University legal experts, the issue of gun owners’ rights on campuses has already been hashed out through the courts.

In 1995, the Supreme Court held that Congress overstepped its bounds in passing the Gun Free School Zones Act, which made it illegal for an individual to possess a firearm in a school zone. The court ruled that the regulation of firearms by creating Gun Free Zones does not fall under the power granted to Congress by the Commerce Clause.

The Clinton administration ultimately wiggled around that ruling by amending the statute, and specifically applying it to firearms that have been transported across state lines. Since nearly all firearms are manufactured, and then transported across the nation to be sold, the statute was upheld as a valid exercise of power under the commerce clause.

On college campuses, the matter is generally left to state law or university policy.

In 2003, the Attorney General of Utah informed universities that their restrictions on firearms contradicted state law. After that, the Utah legislature passed a statute stating that any individual who legally obtained a permit to carry a firearm may do so anywhere except where prohibited by statute.

Because the legislature took no action to establish Gun Free Zones at universities, the attorney general informed Utah campus administrators they had no power under state law to restrict the rights of gun owners. However, the University of Utah resisted, and asked a federal court to intervene and permit the university to govern its own affairs.

While the court seemed sympathetic to that request, it ultimately ruled it could not intervene on a matter of state law between two state officials. The justice who delivered the opinion of the court noted that nothing would be more offensive to the federalist system than a federal court instructing a state officer on how to interpret a state law.

Moreover, in March 2012, the Colorado Supreme Court ruled the University of Colorado board of regents lacked the authority to regulate concealed weapons on campus under the Colorado Concealed Carry Act. All CU students and employees holding a concealed carry permit are legally allowed to bring handguns on campus.

Fix contributor Brian Miller is a student at George Mason University School of Law.

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