When seeking to restrict people from carrying guns on campus, colleges should carefully explain their motivations and should avoid absolute bans that could face trouble in court, a panel of experts advised on Sunday during a gathering of university lawyers here.
Two recent U.S. Supreme Court decisions expanding the reach of the Second Amendment and a flurry of activity by state lawmakers seeking to limit anti-gun policies at colleges have left campus gun bans largely intact. But the panelists said the activity illustrates the need for carefully tailored policies that will hold up in court in the future.
They spoke at the second day of the annual meeting of the National Association of College and University Attorneys.
The Supreme Court decisions, which invalidated some municipal gun restrictions, leave open a critical exception for restrictions that apply to “sensitive places such as schools and government buildings.” George Mason University successfully argued in front of the Virginia Supreme Court that its gun ban was legal because its campus qualifies as a sensitive place.
Patrick O’Rourke, a senior managing counsel at the University of Colorado, implored colleges to carefully write gun restrictions to improve the chances that judges will consider the uniqueness of a college environment. When he recently defended his institution’s gun ban in front of the Colorado Supreme Court, Mr. O’Rourke said, one scowling judge asked a pertinent question: “Well, what makes you so special?”
“That’s really the first thing I think you need to think about when you’re talking about a weapons policy, which is, Why are you going to have one? Why is this environment that you have unique?” Mr. O’Rourke said.
In particular, he said, colleges could explain that their campuses have heated discussions as a natural part of teaching, or that they house 18- to 24-year-olds who are prone to make poor choices with alcohol. He pointed to potential resources provided by the International Association of Campus Law Enforcement Administrators and the Brady Center to Prevent Gun Violence.
Panelists also warned that campus gun bans that lack some exceptions could be riskier. The George Mason policy, for instance, was upheld in part because it applied only in places where people congregate and are the most vulnerable, they said.
“The loser cases all tend to follow a pattern, which is an absolute ban,” said Leonard M. Niehoff, a law professor at the University of Michigan. “Even within those special environments, like schools, if you can have a more moderated policy, one that is not an absolute ban, it increases the likelihood of winning.”
In comments after the panel, Mr. O’Rourke said there still has not been a decision that colleges can look to as a benchmark for their policies. “But one of these is going to trickle up to the Supreme Court,” he said.
