Although Michigan is all atwitter with the news that a Constitutional Carry bill has been passed by the state House, the reality is that even without the need to acquire a Concealed Pistol License, firearms carry for Mitten Staters is still subject to some contradictory and confusing rules and regulations about where and when a gun may be possessed.
Guns may not be carried concealed in an elementary or high school by holders of a Michigan Concealed Pistol License, but there’s no statute banning licensees from the open carry of firearms in those locations. Concealed firearms are also banned from “a dormitory or classroom of a community college, college, or university.”
That was not good enough for the University of Michigan Board of Regents which approved an ordinance in 2001 banning the possession of all firearms, with or without a license, and regardless of whether they were carried openly or concealed, on all of the University’s properties, not just the classrooms and dormitories.
This upset Joshua Wade, a gun rights advocate from Ann Arbor, who filed a lawsuit challenging the ban in 2015. Unfortunately, a lower court dismissed his case, and just this week, a Michigan Court of Appeals upheld that decision.
Wade challenged the ban arguing that his right to carry a firearm protected by the Second Amendment had been infringed and also that the University of Michigan had violated the state’s firearms laws. After all, the state legislature had passed a preemption law barring local units of government from regulating firearms at all. How could the University go off on its own here?
The Appellate Court didn’t like any of it.
The Second Amendment issue was dismissed out of hand by the Court using Scalia’s famous nonbinding dicta about “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings….”
Ah, said the Court, since intermediate scrutiny applies, and since clearly the courtyard at the Michigan Law Quadrangle is a “sensitive place”, the Second Amendment isn’t infringed if we ban guns from this location.
Preemption didn’t apply either, the Court reasoned. As it turns out, the University of Michigan Board of Regents was created directly by Article VIII sec. 5 of Michigan’s 1963 Constitution, and, in the words of the court, is therefore
the highest form of juristic person known to the law, a constitutional corporation of independent authority, which, within the scope of its functions, is co-ordinate with and equal to that of the legislature.
They hard-coded the University’s Board of Regents into the state constitution? The board is equal to the legislature? Really?
Well, maybe not. Judge David Sawyer dissented, saying that the firearms preemption law should apply to the University, citing copious precedent along the way:
[T]he decisions of our courts on this topic do not support a proposition that defendant has free reign to determine which enactments of the Legislature it chooses to follow and which it chooses to ignore. Nor does it grant the University the authority to enact criminal laws.
According to the Detroit Free Press, an appeal to the Michigan Supreme Court is likely. “We strongly agree with the dissent,” said Wade’s attorney Steven Dulan. But first, “I need to have a long talk with Mr. Wade,” he said.
Rick Ector, a firearms trainer and gun rights advocate from Detroit, also seemed optimistic.
“I was disappointed but not disheartened. I expect this fight to go the entire distance. It will make the eventual victory better to savor.”
(An earlier version of this article incorrectly stated a point about Michigan law. Thanks to user Uncommon_Sense for pointing out the error.)