Second Amendment Challenge to University of Michigan Gun Ban
In today’s Wade v Univ. of Michigan, the Michigan Supreme Court sent a challenge to the University of Michigan’s gun ban back to the Court of Appeals, for consideration in light of N.Y. State Rifle & Pistol Ass’n v. Bruen. The Court didn’t issue an opinion, but Justice David Viviano had an interesting concurrence:
The Court today remands to the Court of Appeals an important case concerning the constitutionality of the University of Michigan’s prohibition of firearms on campus. The United States Supreme Court recently elucidated the structure of the required analysis in New York State Rifle & Pistol Ass’n, Inc v Bruen (2022). I write to offer a few thoughts about how that analysis might apply here.
Presently, the University of Michigan bans firearms on campus unless, among a few other exceptions, the University’s Director of Public Safety waives the prohibition for an individual “based on extraordinary circumstances.” Plaintiff has challenged that ban on firearms as a violation of his Second Amendment right to bear arms….
[I]t is not at all apparent that Heller‘s brief discussion of sensitive places was intended to establish a rule that all entities historically known as “schools” could permissibly ban firearms, meaning the only question that would remain for future cases is whether the entity at issue was considered a “school.” Nor is it even clear that the Court meant to include universities and colleges in its reference to “schools,” let alone to say that such locations can completely ban firearms. See Note, Guns on Campus: Continuing Controversy, 38 J C & U L 663, 667-668 (2012) (noting that Heller did not address guns on university campuses or define “schools” to include higher education)….
[The Supreme Court’s Bruen test] requires courts to examine any historical analogues of the modern regulation to determine how these types of regulations were viewed. If there are no such analogues on the societal problem at issue, that historical silence “is relevant evidence that the challenged regulation is inconsistent with the Second Amendment.” “Likewise,” the Court continued, “if earlier generations addressed the societal problem, but did so through materially different means, that also could be evidence that a modern regulation is unconstitutional.” Further, if regulations like the one at issue had been proposed and “rejected on constitutional grounds, that rejection surely would provide some probative evidence of unconstitutionality.” At base, the analysis requires “reasoning by analogy,” which means the court must determine “whether a historical regulation is a proper analogue for a distinctly modern firearm regulation” by assessing “w
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