Legal Watch: Supreme Court's Gun Rulings Threaten Academic Freedom

By Edward Swidriski

In March, the AAUP joined an amicus brief in support of a University of Michigan ordinance that prohibits individuals from possessing guns on campus. The case—Wade v. University of Michigan—provides a useful lens for understanding how the US Supreme Court’s recent attacks on gun regulations threaten safety, free-speech rights, and academic freedom at colleges and universities nationwide.

The case has been making its way through Michigan state courts since 2015, when Joshua Wade, a resident of Ann Arbor, filed suit against the university after it denied his request for a waiver allowing him to carry a gun on campus. The ordinance in question, which prohibits individuals from possessing “any firearm or any other dangerous weapon” on university property, has been in place since 2001. At that time, the ordinance’s constitutionality was indisputable. Since its ratification as part of the Bill of Rights in 1791, the Second Amendment had not been thought to protect anything other than what its words indicate: a collective right of each state to maintain a “well regulated Militia.”

In 2008, however, the Supreme Court handed down a highly controversial 5–4 decision in District of Columbia v. Heller, ruling for the first time that the Second Amendment protects an individual right to possess a firearm in one’s own home, even for purposes unconnected with militia service. Two years later, in McDonald v. City of Chicago, the court, again by a bare majority, extended Heller to all fifty states. Although Heller and McDonald were watershed decisions, the court was careful to emphasize the narrowness of its rulings, specifically writing that its decisions should not be read 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.” In addition, the court recognized the validity of prohibitions on the carrying of “dangerous and unusual weapons.”

Given the limitations on the Second Amendment that even the very conservative Supreme Court majority in Heller and McDonald was willing to acknowledge, the lawsuit was a clear nonstarter. The trial court and the Michigan Court of Appeals rejected his claims, with both courts holding that a university, as a “school,” is a “sensitive place” where guns can be prohibited, consistent with Heller. But Wade appealed to the Michigan Supreme Court, and while his case was pending there, the US Supreme Court once again upset the constitutional landscape.

In New York State Rifle & Pistol Association, Inc. v. Bruen, decided last June, the six Republican-appointed justices held that the Second Amendment now protects an individual’s right to possess guns outside of the home. They also rejected the legal framework that federal courts across the country had developed for assessing Second Amendment claims. Under that approach, courts would often consider the interests served by gun regulations. But under Bruen, the sole permissible consideration in determining whether a gun restriction is constitutional is whether it is “consistent with the Nation’s historical tradition of firearm regulation.”

Late last year, the Michigan Supreme Court sent the Wade case back to the lower appellate court for further consideration in light of Bruen. Even under Bruen’s gun-friendly test, however, Wade will have to overcome extensive historical evidence of long-standing firearm prohibitions at colleges and universities and at comparably “sensitive” locations, including government buildings and polling places. Building on that evidence, the amicus brief joined by the AAUP demonstrates that, like other historically “sensitive” places where guns have long been prohibited, colleges and universities facilitate the exercise of other constitutional rights—especially academic freedom and freedom of speech and protest—and that the presence of guns on campus will inhibit students and faculty members from fully exercising those rights.

In 2015, the AAUP, along with the Association of American Colleges and Universities and the American Federation of Teachers, issued a joint statement opposing “campus-carry” laws, and in 2018, in the wake of the Parkland, Florida, shooting, the AAUP issued a statement confirming its long-standing opposition to the presence of firearms on college and university campuses. The AAUP will continue working to ensure that institutions of higher education remain places where students and faculty can freely discuss all manner of topics, including sensitive and controversial ideas, without intimidation or violence.

Edward Swidriski is assistant counsel at the AAUP.