More to the Idaho campus carry story

We lost on bill H222 in the senate committee but there is still a lawsuit in progress.

I received the following email from Michael C. Brown of ISSA this morning which gives us a little more info as to what was said at the hearing. I find it exceedingly interesting stuff:

The Senate state affairs committee voted 6-3 to kill H222. Several senators who had answered surveys saying they would support the bill voted to kill it. I have attached the testimony that I gave since you won’t hear a word about it in the media. More later:

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I would like to clarify a couple of points about H222 where there apparently is some confusion:

This bill does not “allow” guns on college campuses. This bill does not change current law about where someone may carry a firearm. The colleges and universities have chosen to implement policies banning firearms on their campuses that purport to regulate members of the university community as well as members of the public with no connection to the institution. They are merely policies and as such have no force of law.

These campuses are public property owned by the people of Idaho not by the regents or trustees and not by the state board. The people, in Article 1 Section 11 of the state constitution have described how and by whom they want carry on their property regulated. That provision states, “The people have the right to keep and bear arms, which right shall not be abridged…” The only exception to the guarantee which is pertinent here is a grant of power to the legislature: “this provision shall not prevent the passage of laws to govern the carrying of weapons concealed on the person;…”.The Idaho courts have not construed this provision since it was amended in 1978 but in 1902 the Idaho Supreme Court found that a statute that broadly prohibited carrying firearms violated both the previous (weaker) language of art 1 sec 11  and also the second amendment to the United States constitution  (it took the US Supreme Court another 106 years to reach a similar conclusion). To quote from that opinion: “Under these constitutional provisions, the legislature has no power to prohibit a citizen from bearing arms in any portion of the state of Idaho, whether within or without the corporate limits of cities, towns, and villages. The legislature may, as expressly provided in our state constitution, regulate the exercise of this right, but may not prohibit it.” In re Brickey, 8 Idaho 597, 70 P. 609 (1902).

The purpose of this bill is to clarify exactly what authority public colleges and universities in Idaho have to regulate firearms on their campuses. This legislation represents the first specific grant of authority to an institution of higher education to regulate firearms (in dorms only) since 1889. While the regents of the University of Idaho have been granted general authority to operate the university under article 9 section 10 of the constitution and the various state colleges and universities’ boards have been granted similar general authority by statute, the question remains: if a general grant of authority to run a college authorizes a state institution to abrogate the enumerated constitutional right contained in art 1 sec 11 , then, by that logic, can they also deny the other rights guaranteed by the Idaho constitution on their campuses?

This bill does not “allow” open carry on college and university campuses. In 1978 the people of Idaho voted to amend Article 1 Section 11 of the state constitution to take away the authority of the legislature to regulate the open carry of firearms.  Here is the old language:

“ The people have the right to bear  arms  for their  security and

  defense; but the legislature shall regulate the exercise of this right by law.”

And, again,  here is the relevant current language:

“The people have the right to keep and bear arms, which right shall not be abridged; but this provision shall not prevent the passage of laws to govern the carrying of weapons concealed on the person…”(emphasis added).

By the plain language of this provision, the legislature can only regulate concealed weapons and it has chosen to do so by passing a law of general application which requires that a license be obtained before a concealed weapon may be carried in public. In a couple of instances the legislature has enacted laws that prohibit all firearms in certain discrete locations (airports and K-12 schools). The courts have not ruled on the constitutionality of these provisions. Note, however,  that all of these are very narrow exceptions to the general rule. Likewise the grant of authority to the institutions to regulate all firearms possession in dorms is a very narrow exception and is much more likely to be upheld by the courts  than the kind of absolute ban which the Supreme Court struck down in Brickey.

There have been concerns raised about which rules will apply in facilities that house both graduate and undergraduate students. The simple answer is : the institutions all employ attorneys (some of whom are here today) who know how to draft a housing contract. Please note that the bill allows the institutions to regulate as well as to ban. If this is a real concern the institutions can choose to regulate by allowing all residents of a mixed undergraduate/ graduate housing building to have firearms in their apartments.

I do not know if Elton John realizes that he has become a cause célèbre in the Idaho legislature but the concern has been raised that this bill would affect the ability of colleges and universities to lease their facilities to promoters for concerts and other events where the promoter requires that firearms be banned. If we look at what happens in a couple of neighboring states I think this concern disappears. While the courts in Idaho have never addressed the issue of whether a lessee can impose restrictions more stringent than a state actor would be able to, the Oregon courts have. In Starrett v. City of Portland 196 Ore. App. 534; 102 P.3d 728; 2004 , the court held that a promoter who had leased a publicly owned venue could ban guns during the duration of their lease even though the public entity that owned the property would not be able to do the same thing under Oregon’s preemption law (which is similar to Idaho’s). Likewise, in Washington a state statute, RCW 9.41.300, prohibits cities from barring holders of Washington concealed weapons permits from municipally owned stadiums and auditoriums. Despite this statute, Elton John plays the Spokane Arena, a municipally owned facility, on April 8th, the night before he plays Taco Bell Arena here in Boise.

This bill is completely unnecessary. The colleges and universities, as I have pointed out above, do not have authority to ban firearms on their campuses as they purport to do. If they would stop infringing on the constitutional rights of faculty, staff, students, and the public and conform their policies to the existing law, there would be no need for this legislation. Instead they have chosen, in this time of straitened institutional finances, to require individuals and groups to engage in litigation, costly to both sides, in order to vindicate their rights.

2 thoughts on “More to the Idaho campus carry story

  1. It’s not the Law itself that really needs changed, because the intent of the citizens of Idaho, for whom the State Law exists, was clarified back in 1978. It’s those 6 State Senators who need changed. I keep it simple: if a public employee (whether Hired into the Job or Voted into the Job or Apponted into the Job) who gets his/her Bread and Butter from the income of their Bosses (the Citizens)votes to curtail ANY of their Bosses Rights, then that Employee needs to be fired ASAP.

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