Crossfire on Compulsory Campus Carry Laws: When the First and Second Amendments Collide

Crossfire on Compulsory Campus Carry Laws: When the First and Second Amendments Collide Shaundra K. Lewis * ABSTRACT: Despite college communities’ overwhelming opposition to firearms on campuses, states are continuing to pass legislation forcing public higher education institutions to permit the secret carrying of firearms inside academic buildings and classrooms at an alarming rate. Many students, faculty, and administrators believe the presence of firearms will stifle their First Amendment right to free speech and academic freedom, as the mere presence of firearms will create an uncomfortable learning and working environment. Additionally, it will make some professors and students more reticent to discuss controversial and sensitive issues out of fear that heated debates could become violent. On the other hand, campus carry proponents maintain they have a Second Amendment right to carry a firearm for self-defense. Thus, the campus carry issue raises two competing constitutional claims. This Article is one of the first to posit that the First Amendment rights to free speech and academic freedom trump the Second Amendment right to bear arms in the campus carry context. In making this case, Part II identifies the states with campus carry laws and shows how there is a frightening trend toward arming campuses. Part III cogitates several First Amendment challenges that could be mounted against this legislation. Part IV contemplates the Second Amendment argument that individuals have a right to carry on campus for self-protection. Part V explains why the First Amendment claim should prevail. Finally, Part VI provides guidance on how to survive on an armed campus. * Associate Professor of Law at Thurgood Marshall School of Law at Texas Southern University; J.D., St. Thomas University School of Law, Summa Cum Laude, 1998; B.A., Stetson University, 1995. This Article was supported by a summer research grant from Thurgood Marshall School of Law at Texas Southern. I would like to thank Professor Angela OnwuachiWillig of the University of California Berkeley School of Law and the participants of the 2016 Lutie Lytle Workshop for their support. Special thanks goes to Professor Elise Boddie of Rutgers School of Law–Newark for her invaluable feedback and to Mr. Daniel De Luna for his research assistance. 2110 IOWA LAW REVIEW [Vol. 102:2109 I. INTRODUCTION ........................................................................... 2110 II. STATES IMPOSING BULLETS AND BOOKS BY LEGISLATIVE FIAT ............................................................................................. 2113 III. FIRST AMENDMENT CONCERNS ABOUT LEGISLATION ................ 2117 A. H OW G UNS V IOLATE A CADEMIC F REEDOM .............................. 2117 1. Institutional Academic Freedom ............................... 2118 2. Individual Academic Freedom ................................... 2122 i. Faculty’s Right to Academic Freedom ........................ 2122 ii. Students’ Right to Academic Freedom ........................ 2127 B. H OW G UNS C OMPEL S PEECH .................................................. 2130 IV. SECOND AMENDMENT ARGUMENT FOR ARMING CAMPUSES ....... 2133 V. RESOLUTION OF POTENTIAL CONFLICT BETWEEN FIRST AND SECOND AMENDMENTS ............................................................... 2134 A. N O C ONSTITUTIONAL R IGHT TO C ARRY C ONCEALED F IREARMS ON C AMPUS ........................................................... 2135 B. O THER J USTIFICATIONS FOR C HOOSING THE F IRST O VER THE S ECOND A MENDMENT ..................................................... 2137 VI. CONCLUSION .............................................................................. 2141 “Even to the extent one considers bearing arms desirable, speech remains more important for individuals and society: How many avid hunters would give up communication before they gave up hunting?” 1 I. INTRODUCTION The issue of whether concealed handgun licensees (“CHLs”) should be permitted to carry firearms inside higher education academic buildings (including classrooms) has been vociferously debated over the past decade. 2 1. Gregory P. Magarian, Speaking Truth to Firepower: How the First Amendment Destabilizes the Second , 91 TEX. L. REV. 49, 57 (2012). 2 . See Ryan Phillips, Georgia Governor Vetoes ‘Campus-Carry’ Concealed Gun Bill , ASSOCIATED PRESS (May 3, 2016, 2:39 PM), http://www.seattletimes.com/nation-world/georgia-governor-vetoes-campus-carry-concealed-gun-bill (reporting that all 29 of Georgia’s public college and university presidents and their police chiefs oppose a proposed campus carry bill); Point Blank: Guns Don’t Belong on College Campuses—Here’s Why , PUBLICHEALTHWATCH (Mar. 10, 2014), https://publichealthwatch.wordpress. com/2014/03/10/point-blank-guns-dont-belong-on-college-campuses-heres-why. As a testament to how visceral the campus carry debate has become, the Students for Concealed Carry organization personally attacked a University of Houston professor’s character on their website for opposing campus carry by pointing out an old domestic violence report that was filed against him. Admin, Does a Prominent Anti-Campus Carry Activist Have a History of Violence Against Women? , STUDENTS FOR CONCEALED CARRY (Mar. 21, 2016), http://concealedcampus.org/2016/03/anti-campus-carry-advocate-history-of-violence-against-women. 2017] CROSSFIRE ON COMPULSORY CAMPUS CARRY LAWS 2111 Yet, despite the numerous voices expressing fervent dissent to such a measure, some state legislatures have passed laws mandating the allowance of firearms in classrooms as a measure taken to prevent school shootings and other campus violence. 3 These laws, hereinafter referred to as “compulsory campus carry laws,” put public higher educational institutions in a conundrum— either: (1) follow a law that the overwhelming majority on campus disagree with; 4 or (2) disobey the law by continuing to ban firearms and potentially risk a reduction in state funding or another financial penalty. 5 But campus carry laws implicate more than just Second Amendment rights. American colleges and universities, and the students and faculty that inhabit them, enjoy special protections designed to protect the ability to teach and learn freely. 6 Requiring the allowance of firearms in classrooms and academic buildings will have a chilling effect on academic speech in many different ways, including students’ in-class expression, professor and student engagement, professor and professor interaction, and administrator and professor relations. Accordingly, campus carry laws may violate First Amendment protections of academic freedom. For example, knowing that a student may be concealing a firearm could cause a professor to feel uncomfortable giving a student a failing grade because this could result in a violent confrontation, and even death. 7 Indeed, it is not outside the realm of possibility for a student to shoot a professor over a grade. In 2002, a disgruntled Appalachian School of Law student who was academically dismissed shot and killed one of his law professors and the law 3 . See Firmin DeBrabander, Campus Carry vs. Faculty Rights , INSIDE HIGHER ED (Mar. 19, 2015), https://www.insidehighered.com/views/2015/03/19/essay-movement-allow-guns-campuses-violates-academic-freedom. 4 . See James H. Price et al., University Presidents’ Perceptions and Practice Regarding the Carrying of Concealed Handguns on College Campuses , 62 J. AM. C. HEALTH 461, 463 (2014) (finding in a scientific study that 95% of 401 college and university presidents randomly surveyed were unsupportive of the idea of students, faculty, and visitors carrying concealed firearms on campus, and that “most faculty (92%) and students (89%) would feel unsafe if faculty, students, and visitors carried concealed handguns on campus”). 5 . See Kathy L. Wyer, Note, A Most Dangerous Experiment? University Autonomy, Academic Freedom, and the Concealed-Weapons Controversy at the University of Utah , 2003 UTAH L. REV. 983, 987 (describing how the University of Utah’s refusal in 2001 to implement Utah’s campus carry law resulted in a senator introducing a bill to reduce the University president’s salary by half). 6 . Id. at 1008–16. 7. Manny Fernandez & Dave Montgomery, Texas Lawmakers Pass a Bill Allowing Guns at Colleges , N.Y. TIMES (June 2, 2015), https://www.nytimes.com/2015/06/03/us/texas-lawmakers-approve-bill-allowing-guns-on-campus.html (“Professors said they worry about inviting a student into their offices to talk about a failing grade if they think that student is armed.”); Alexandria Samuels , University of Texas Dean Resigns Over Campus Carry Concerns , USA TODAY C. (Feb. 28 2016, 11:21 AM), http://college. usatoday.com/2016/02/28/ut-dean-resigns-camupus-carry (reporting how the University of Texas’s Professor Emeritus Daniel Hamermesh resigned because of Texas’s Campus Carry Law, stating in his resignation letter that “my perception is that the risk that a disgruntled student might bring a gun into the classroom and start shooting at me has been substantially enhanced by the concealed-carry law”). 2112 IOWA LAW REVIEW [Vol. 102:2109 school dean. 8 A law permitting students with CHLs to carry firearms into classrooms increases the chances of this happening again on a college campus, especially at a law school, where nearly all of the students are 21 years of age or older and satisfy the CHL age requirement. 9 The presence of guns could also negatively affect interactions between professors as well as faculty governance. For instance, faculty members may be less likely to cast negative votes on important issues like tenure out of fear of being shot. Consider the case of the University of Alabama professor who found the denial of tenure so calamitous that she murdered some of her colleagues during a department meeting. 10 Legislation authorizing professors to carry concealed firearms arguably increases the likelihood of a...