2017 was a busy year in regards to the laws governing firearms within the State of Michigan. Republicans in the Michigan House of Representatives have identified “defending second amendment rights” as being among their action plan items for the 2017-2018 legislative session, which has led to a flurry of bills being proposed. Among bills proposed during 2017, there were multiple bills which would seek to alter the rights of individuals to possess firearms within traditional gun free zones, such as schools.
As gun rights advocates have sought to establish when and where they may legally possess firearms, Michigan courts have been forced to address the authority of legal bodies such as the board of regents of State universities to enact restrictions limiting the possession of firearms on property controlled by the university.
Questions have existed for years regarding the scope of the regulatory scheme which prohibits regulations related to firearm possession in public spaces. It is clear that State law forbids local units of government from enacting any regulation regarding possession of firearms in MCL 123.1102. MCL 123.1102 provides that no local unit of government shall enact an ordinance or regulation, or otherwise regulate the ownership, or possession of pistols, or other firearms except as permitted by federal or state law.
However, it has not always been clear what constitutes a local unit of government. In 2012, ambiguity regarding the scope of local unit of government arose when the Michigan Court of Appeals determined that a district library could not prohibit possession of firearms on its premises because it was essentially akin to a local unit of government (see Capital Area Dist. Library v Michigan Open Carry, Inc) (“CADL”).
Two cases which have attracted the most notoriety over the past two years regarding this issue and the applicability of the current regulatory scheme to schools involve efforts by gun rights advocates to challenge restrictions on firearm possession in Ann Arbor: Michigan Gun Owners, Inc. v Ann Arbor Public Schools, and Wade v University of Michigan.
The cases arise out of a policy enacted by Ann Arbor Public Schools and an ordinance enacted by the University of Michigan which prevent anyone from possessing firearms on property owned or operated by Ann Arbor Public Schools or the University of Michigan, respectively. (Certain exceptions apply for individuals such as police officers.)
Emboldened by the holding in CADL, in each Ann Arbor case, the plaintiffs alleged that the legislature had already sought to exclusively preempt local gun control laws and regulations through the enactment of MCL 123.1102. Both the City of Ann Arbor and University of Michigan argued that MCL 123.1102 was inapplicable to them for the reason that they do not qualify as a local unit of government for purposes of the statute.
Ann Arbor Public Schools asserted that as a public school district, Michigan law conferred upon them the right to enact policies which assure the safety and welfare of students, in addition to preventing disruption within the educational environment.
Likewise, the University of Michigan argued that it had the right to enact its ordinance restricting possession of firearms on its properties because it was a “sensitive place” as defined by the United States Supreme Court case Dist. of Columbia v Heller and because it is a constitutional corporation with power equal to the state legislature to promulgate regulations regarding its operations.
The Court of Appeals agreed with Ann Arbor Public Schools and the University of Michigan that MCL 123.1102 did not apply to them finding that for purposes of the statute, a local unit of government is deemed to be “a city, village, township, or county.” Further, in both cases, the Court established that the legislature did not preempt all regulation of firearms both by finding that the University and the school district were public bodies separate from a city, village, township, or county. Further, it was determined that the University, as a state-level entity, is not similarly situated to a city, village, township, or county.
In the University of Michigan case, the Court of Appeals also engages in a brief discussion and review of the Heller case, which is currently one of the seminal cases in the United States addressing the scope of the application of the Second Amendment and which may provide guidance for schools seeking to maintain restrictions regarding the possession of firearms.
The Heller case, when coupled with the United States Supreme Court’s decision in McDonald v Chicago, establishes a two-part test to be applied when reviewing regulations applicable to firearms. As noted by the Court of Appeals in the University of Michigan case, the “threshold inquiry” is whether the regulation “regulates conduct that falls within the scope of the Second Amendment as historically understood.” No further analysis is required and no Second Amendment protection is afforded if the conduct being regulated has traditionally been deemed to fall outside of the Second Amendment. However, if the regulation being challenged regulates conduct that typically falls within the scope of the Second Amendment, then the regulation needs to be analyzed to determine if there is “a reasonable fit between the asserted interest or objective and the burden placed upon an individual’s Second Amendment right.”
In the University of Michigan case, the Court of Appeals determined that a university was understood to be a “school” at the time the Second Amendment was enacted. As the Court notes, in the Heller case, the Supreme Court suggested that “sensitive places” are “categorically unprotected” by the Second Amendment. Schools were deemed to be “sensitive places” by Heller.
While the Court of Appeals found that the regulations limiting possession of firearms on school property established by both Ann Arbor Public Schools and the University of Michigan were legal, the issue has not necessarily been fully resolved at this time.
This past December, the Michigan Supreme Court indicated it wanted further information from the parties as it considers whether or not to hear an appeal in Michigan Gun Owners, Inc. v Ann Arbor Public Schools. Additionally, the Michigan Senate passed a bill in November which would permit holders of concealed weapons permits who obtain additional training to be licensed to carry weapons in traditionally pistol-free zones. The bill is still pending in the State House. It appears determining the rights of gun owners to possess firearms in schools will continue to be a major topic in the coming months.