Weapons on Campus: Are We a Special Context?
BY JONATHAN R. ALGER
Every time a shooting occurs on or near a college campus, a debate rages anew as to whether and to what extent weap-
ons should be permitted at higher education institutions. While some institutions allow students to carry concealed
weapons on campus, including Colorado State University and the public universities in Utah, “concealed carry” is
explicitly prohibited at many colleges by state law or institutional policy. The 2007 Virginia Tech tragedy riveted unprecedented
national attention on this issue and elicited extreme positions from advocates on both sides of the ongoing gun-control debate. To
further compound confusion about the parameters of the law, earlier this year the U.S. Supreme Court issued its first decision in
many decades interpreting the Second Amendment’s right to bear arms with only a fleeting reference to schools. Underlying the
debate is a fundamental question: Should weapons laws apply differently to colleges and universities than to other settings?
In its decision in District of Columbia v. Heller, the Supreme
Court held that the Second Amendment protects an individual’s, not just a militia’s, right to bear arms. In doing so,
it struck down one of the strictest gun-control statutes in the
country. Like most other constitutional rights, however, the
court also noted that the right to bear arms is not unlimited.
Of particular interest to educational institutions is the following passage from the ruling:
“[N]othing 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.”
The court did not expound on the nature and degree of
limitations that might apply to the possession of firearms at
educational institutions, nor did it clarify whether it specifically intended to cover postsecondary institutions within the
definition of “schools.” Gun-rights groups have hailed the
decision as a significant victory and argue that colleges and
universities are not “sensitive places” within the meaning of
this phrase. Gun-control advocates have countered that this
language reflects a clear understanding that educational institutions at all levels need to be free of firearms. Might it matter
if we are talking about a large urban university as opposed to a
small college in a rural setting? We may soon see litigation that
could turn, in part, on such distinctions.
Is there something special about the mission of higher
education that should inform the debate about weapons on
campus? The educational environment at its best is marked by
a certain kind of openness. Colleges and universities are institutions at which individuals are supposed to explore, freely
discussing and debating ideas in a safe, civilized manner.
The notion of academic freedom that undergirds higher
education can thrive only in an atmosphere of unusual safety
and security. The presence of lethal weapons, in some sense,
seems antithetical to the nonviolent rules of engagement in this
environment. But many institutions have concluded that an
exception must be made for their own law-enforcement personnel. And gun-rights proponents argue that institutions of higher
education are not isolated ivory towers, but instead are similar to
other open settings, such as shopping malls.
Academic freedom also means that individuals need to be
free to express ideas related to weapons and their role in our
society. In their desire to eliminate weapons-related violence
after the Virginia Tech tragedy, some institutions banned the
performance of plays in which fake weapons are featured or
tried to suppress speech involving language related to guns.
Others banned games in which toy weapons are used. Over
time these reactions should become more tempered as institutions assess the likelihood of actual threats in such circumstances. Harder questions are raised, however, by a student’s
expression in writing assignments or class discussions that
suggests that an individual has access to, and is considering
using, a weapon. In an era in which more students than ever
come to our campuses with mental health issues, these dilemmas are magnified.
The courts have long acknowledged that context matters
when applying the law, whether the subject is affirmative
action or gun control. If we believe that colleges and universities constitute a “sensitive” setting that merits special treatment under the law with regard to weapons, we must also
ensure that our own well-intentioned policies do not hinder
the very educational environment they are designed
to protect. LE
Jonathan R. Alger is vice president and general counsel at Rutgers, The
State University of New Jersey.
