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Thread: Got a Response on "Authority" to Restrict/Prohibit Campus Carry

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    Regular Member wylde007's Avatar
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    Unhappy Got a Response on "Authority" to Restrict/Prohibit Campus Carry

    And it reads like they're talking out of both sides of their mouths. Essentially the public colleges/universities CANNOT prohibit lawful [concealed] carry but they may prohibit faculty and students from carrying as a matter of "public safety".

    This so-called "authority" needs to be overridden or revoked, and the sooner the better.

    OP. NO. 05-078
    EDUCATIONAL INSTITUTIONS: GENERAL PROVISIONS — UNIVERSITY OF VIRGINIA – BOARD OF VISITORS.
    CRIMES AND OFFENSES GENERALLY: CRIMES INVOLVING HEALTH AND SAFETY – OTHER ILLEGAL WEAPONS – DANGEROUS USE OF FIREARMS OR OTHER WEAPONS.
    Governing boards of Virginia’s public colleges and universities may not impose general prohibition on carrying of concealed weapons by permitted individuals. Pursuant to specific grants of statutory authority, however, colleges and universities may regulate conduct of students and employees to prohibit them from carrying concealed weapons on campus.

    The Honorable R. Creigh Deeds Member, Senate of Virginia January 4, 2006
    Issue Presented

    It is my opinion that the governing boards of Virginia’s public colleges and universities may not impose a general prohibition on the carrying of concealed weapons by permitted individuals. Pursuant to specific grants of statutory authority, however, it is my opinion that colleges and universities may regulate the conduct of students and employees to prohibit them from carrying concealed weapons on campus.

    Background
    You report that one of your constituents, an employee of the University of Virginia Medical Center, is the holder of a valid concealed weapons permit and would like to carry his firearm to and from the hospital, his place of employment. You further relate that you understand the University of Virginia has a policy prohibiting the carrying of weapons on campus.

    Applicable Law and Discussion
    The right of a citizen, with a properly issued permit, to carry a concealed handgun is considered universal within the Commonwealth, subject to limited constraints.1 The General Assembly specifically has set out those places where the carrying of a concealed handgun is prohibited: (1) places of worship;2 (2) courthouses;3 (3) elementary through high schools;4 (4) places licensed for on-premises alcoholic beverage consumption;5 and (4) such private property as may be prohibited by the owner.6 The right to carry openly has not been revoked by the General Assembly.7
    Additionally, someone to whom a court has granted a concealed carry permit already has undergone an extensive criminal background check.8 Section 18.2-308(E) necessarily requires that the court is satisfied that the applicant has not received mental health treatment or substance abuse treatment within five years prior to the application, is not a user or distributor of controlled substances, is not an illegal alien, is not a fugitive from justice, and has not been convicted of any assault, sexual battery, stalking, or any of the other offenses detailed in subsection E.

    It is well established in Virginia that a university, through its board, "‘has not only the powers expressly conferred upon it, but it also has the implied power to do whatever is reasonably necessary to effectuate the powers expressly granted.’"9 This broad authority does not, however, supersede statutory or case law, public policy, or explicit statements of the General Assembly regarding specific topics.10

    The powers expressly conferred and possessed by the governing body of an educational institution include the authority "[t]o establish rules and regulations for the conduct of students while attending such institution"11 and "[t]o establish rules and regulations for the employment of professors, teachers, instructors, and all other employees and provide for their dismissal for failure to abide by such rules and regulations."12

    The University of Virginia has promulgated a "Security and Firearms Policy," which provides that "[t]he possession, storage, or use of any kind of ammunition, firearms, fireworks, explosives, air rifles and air pistols on University-owned or operated property, without the expressed written permission of the University Police, is prohibited."13

    It is my opinion that the safe operation of the campus allows regulation of, or under limited circumstances, prohibition of, firearms by any persons attending events on campus, visiting dormitories or classroom buildings, attending specific events as invitees, or under any circumstance permitted by law. The universal prohibition of firearms by properly permitted persons other than students, faculty, administration, or employees, however, is not allowed under law. A board of visitors has responsibility for the protection of the students enrolled at their university. At the same time, the rights guaranteed by the Second Amendment of the Constitution of the United States14 and by Article I, § 13, of the Constitution of Virginia,15 which protect all citizens, may not be summarily dismissed for transient reasons.

    In light of the General Assembly’s specific statements regarding the limits of carrying concealed handguns and the grant of authority to colleges and universities to regulate the conduct of students and employees, it is my opinion that neither a board of visitors nor a president of a public college or university may infer authority from its enabling legislation to adopt a universal prohibition of carrying concealed handguns by holders with valid permits.

    Conclusion
    Accordingly, it is my opinion that the governing boards of Virginia’s public colleges and universities may not impose a general prohibition on the carrying of concealed weapons by permitted individuals. Pursuant to specific grants of statutory authority, however, it is my opinion that colleges and universities may regulate the conduct of students and employees to prohibit them from carrying concealed weapons on campus.

    1 See generally Va. Code Ann. § 18.2-308 (Supp. 2005).
    2 See § 18.2-283 (2004).
    3 See § 18.2-283.1 (2004).
    4 See § 18.2-308.1(B) (Supp. 2005).
    5 See § 18.2-308(J3).
    6 See § 18.2-308(O).
    7 See § 18.2-287.4 (Supp. 2005) (prohibiting carrying of certain large ammunition capacity weapons); see also § 18.2-308 (prohibiting carrying of concealed weapons without permit).
    8 See § 18.2-308(D).
    9 Goodreau v. Rector & Visitors of Univ. of Va., 116 F.Supp.2d 694, 703 (W.D. Va. 2000) (quoting Batcheller v. Commonwealth, 176 Va. 109, 123, 10 S.E.2d 529, 535 (1940)).
    10 See Va. Code Ann. § 23-69 (2003) (providing that board of visitors "shall be at all times subject to the control of the General Assembly"); see also § 23-76 (2003) (providing that board of visitors may "make such regulations as they deem expedient, not being contrary to law" (emphasis added)); Jones v. Commonwealth, 267 Va. 218, 223, 591 S.E.2d 72, 75 (2004) (noting that University of Virginia is governmental entity under control of General Assembly).
    11 Section 23-9.2:3(A)(2) (Supp. 2005).
    12 Section 23-9.2:3(A)(5).
    13 University of Virginia, Financial and Administrative Policies, Section XV.J.1 ("Security and Firearms Policy"), ¶ 2.0 (Dec. 4, 1995), available at http://www.virginia.edu/finance/polproc/pol/xvj1.html .
    14 "[T]he right of the people to keep and bear Arms, shall not be infringed." U.S. Const. amend. II.
    15 "[T]he right of the people to keep and bear arms shall not be infringed[.]" Va. Const. art. I, § 13.
    It, however, does not address the Constitutional right of unprohibited OPEN CARRY. Very disappointing, to say the least.
    The quiet war has begun, with silent weapons
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    Campaign Veteran skidmark's Avatar
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    1 - Again, the AG's opinion responds only to the question asked. Deeds did not inquire about open carry.

    2 - We have discussed the issue of colleges/universities being able to regulate faculty/students/staff vs. their inability to regulate those not falling into one of those three categories. Until such time as the state preemption statute clearly and unequivocally states that "state agencies. departments, boards, commissions, etc. ad nauseum" are also preempted from making rules/regulations and that only the General Assembly can regulate firearms possession/carry we will continue to have this discussion.

    3 - Rather than massacre electrons arguing between/among ourselves over what the state preemption statute means, why don't we work together to have it amended to be what we want it to mean?

    stay safe.

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    Regular Member wylde007's Avatar
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    Exclamation

    Quote Originally Posted by skidmark View Post
    Until such time as the state preemption statute clearly and unequivocally states that "state agencies. departments, boards, commissions, etc. ad nauseum" are also preempted from making rules/regulations and that only the General Assembly can regulate firearms possession/carry we will continue to have this discussion.
    I agree with this 100% and will be encouraging my representatives to do exactly this in the upcoming session(s).

    I posted this merely as a courtesy and to denote that I had received a response, such that it is, from the "authority" to which I queried.
    The quiet war has begun, with silent weapons
    And the newest slavery is to keep the people poor, and stupid
    Novos ordo seclorum ~ Mustaine

    Never argue with an idiot. He will drag you down to his level and beat you with experience.

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    Accomplished Advocate peter nap's Avatar
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    Quote Originally Posted by wylde007 View Post
    I agree with this 100% and will be encouraging my representatives to do exactly this in the upcoming session(s).

    I posted this merely as a courtesy and to denote that I had received a response, such that it is, from the "authority" to which I queried.
    Thanks Wylde!
    It's an interesting read. I don't know if the faculty carry bill is going back in again this year or if they plan for a SCCC move instead.

    With a little creative wording, they can make it work for everyone involved.

    I expect the faculty bill has a chance but unless SCCC learns to flex some, it's a waste of paper.

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    Regular Member wylde007's Avatar
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    Wink

    I would just like to see, as skid noted, that the preemption clause in § 15.2-915 is expanded and more evenly defined.
    The quiet war has begun, with silent weapons
    And the newest slavery is to keep the people poor, and stupid
    Novos ordo seclorum ~ Mustaine

    Never argue with an idiot. He will drag you down to his level and beat you with experience.

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    I agree with Wylde (as usual). His approach is the path of least resistance and should not require any new legislation. The other proposed methods would do more (secure 2nd A for students etc.) but are much more of an undertaking to secure.

    By all means we should work towards that, but no clarification from the contradictions in the current campus situation, as we all know, (and I was almost arrested for recently) will result in school administrative pudwackers erring to the anti-freedom side EVERY TIME!
    Last edited by Tweaker; 08-12-2010 at 02:42 PM.

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    Well, at least Atty. General opinions are not law and concealed means concealed.

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    Regular Member TFred's Avatar
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    I guess I'm a little confused.

    Are you saying that you just recently got a reply from the school, which cited this 4 year old Attorney General's opinion as the authority by which they ban the carry of firearms by members of the school community?

    If that is the case, I don't see what is new. We've known about this opinion for... well... four years.

    TFred

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    Regular Member wylde007's Avatar
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    Exclamation

    Quote Originally Posted by TFred View Post
    Are you saying that you just recently got a reply from the school, which cited this 4 year old Attorney General's opinion as the authority by which they ban the carry of firearms by members of the school community?
    Essentially, yes.

    My question was regarding the VCCS (community colleges) which are directly appointed by the Governor and, from my perspective, different than the boards of supervisors at state universities which, while receiving state funds, have private boards.

    I thought they should be considered differently. I guess I was wrong. I hope to use that knowledge to help me formulate an argument to further clarify and quantify the preemption statute in coming assembly sessions.

    Sorry to sound obtuse. I considered the situations to be different on a political level. Apparently the VCCS does not.
    The quiet war has begun, with silent weapons
    And the newest slavery is to keep the people poor, and stupid
    Novos ordo seclorum ~ Mustaine

    Never argue with an idiot. He will drag you down to his level and beat you with experience.

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    Regular Member TFred's Avatar
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    Quote Originally Posted by wylde007 View Post
    Essentially, yes.

    My question was regarding the VCCS (community colleges) which are directly appointed by the Governor and, from my perspective, different than the boards of supervisors at state universities which, while receiving state funds, have private boards.

    I thought they should be considered differently. I guess I was wrong. I hope to use that knowledge to help me formulate an argument to further clarify and quantify the preemption statute in coming assembly sessions.

    Sorry to sound obtuse. I considered the situations to be different on a political level. Apparently the VCCS does not.
    No biggie, you just left all these details out of your first post, so it didn't make any sense to me.

    TFred

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    Wink

    Quote Originally Posted by nova View Post
    Well, at least Atty. General opinions are not law and concealed means concealed.
    And it is still better to be judged by 12 (or at an expulsion hearing) than carried by 6.

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    Regular Member wylde007's Avatar
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    Cool

    Quote Originally Posted by TFred View Post
    No biggie, you just left all these details out of your first post, so it didn't make any sense to me.
    To those who have been paying attention, I first posted about this incident in the "Hampton Roads" thread and decided to isolate it here, lest I add unnecessary content to that thread.

    I didn't really think it was critical at the time. Sorry for the confusion.
    The quiet war has begun, with silent weapons
    And the newest slavery is to keep the people poor, and stupid
    Novos ordo seclorum ~ Mustaine

    Never argue with an idiot. He will drag you down to his level and beat you with experience.

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    Regular Member simmonsjoe's Avatar
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    Good job.

    I was wondering the exact same thing about the VCCS situation.

    Only part I think might make this, and the AG earlier decision BS is the justification of public safety being the reasoning. Nobody has ever proven limiting CHPers increases safety. The only evidence is contrary, in that it increases the risk of violent crimes to have a GFZ.

    Perhaps instead of having their authority changed, we can argue inside the existing rules, and simply argue that the current firearms policy actually makes us unsafe. Since all statistical data would concur with us, it would make their current policy outside of their current authority.

    Am I making sense?
    Last edited by simmonsjoe; 08-12-2010 at 11:28 PM.
    illegal ≠ immoral legal ≠ moral
    [SIZE=1]"I never submitted the whole system of my opinions to the creed of any party of men whatever in religion, in philosophy, in politics, or in anything else where I was capable of thinking for myself. "Such an addiction is the last degradation of a free and moral agent." - Thomas Jefferson
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    Quote Originally Posted by simmonsjoe View Post
    I was wondering the exact same thing about the VCCS situation.

    Only part I think might make this, and the AG earlier decision BS is the justification of public safety being the reasoning. Nobody has ever proven limiting CHPers increases safety. The only evidence is contrary, in that it increases the risk of violent crimes to have a GFZ.

    Perhaps instead of having their authority changed, we can argue inside the existing rules, and simply argue that the current firearms policy actually makes us unsafe. Since all statistical data would concur with us, it would make their current policy outside of their current authority.

    Am I making sense?
    yes, but sense and gun control never mix

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    Campaign Veteran skidmark's Avatar
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    As much as I respect nova's analytical skills, I must dusagree with him and say that Joe's suggestion to try and refute the "public safety" issue makes no sense at all. Any finding - e.g.: the sky is blue, grass is green, or even pygmies must be at least 7 feet tall, will sufice when used as part of the process of making a regulation. There is absolutely no requirement that the finding be scientifically or statistically supportable because it is merely the opinion of those making the rule.

    If the General Assembly really meant that it wanted/wants to take the issue of writing rules regarding firearms onto itself and not allow anyone else to write rules, then § 15.2-915 needs to be amended so that the existing confusion about exactly who is prohibited from making rules, as seen even here, is made clearer

    While that may make the job of the legislators more difficult by having to actually write out and vote on all the existing rules, that does not make me sad in any way. As far as I'm concerned it's their job to decide if we should be allowed to carry inside prisons. (And yes, I hope that in that case they decide we should not be allowed to do so.) It's also their job to decide if adults should be allowed to discreetly carry (since that seems to be the mode being most asked for) on college/university campii even though minors might be present, just as we are currently allowed to do at state parks where mnors are also often present.

    stay safe.

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    Quote Originally Posted by skidmark View Post
    As much as I respect nova's analytical skills, I must dusagree with him and say that Joe's suggestion to try and refute the "public safety" issue makes no sense at all. Any finding - e.g.: the sky is blue, grass is green, or even pygmies must be at least 7 feet tall, will sufice when used as part of the process of making a regulation. There is absolutely no requirement that the finding be scientifically or statistically supportable because it is merely the opinion of those making the rule.

    If the General Assembly really meant that it wanted/wants to take the issue of writing rules regarding firearms onto itself and not allow anyone else to write rules, then § 15.2-915 needs to be amended so that the existing confusion about exactly who is prohibited from making rules, as seen even here, is made clearer

    While that may make the job of the legislators more difficult by having to actually write out and vote on all the existing rules, that does not make me sad in any way. As far as I'm concerned it's their job to decide if we should be allowed to carry inside prisons. (And yes, I hope that in that case they decide we should not be allowed to do so.) It's also their job to decide if adults should be allowed to discreetly carry (since that seems to be the mode being most asked for) on college/university campii even though minors might be present, just as we are currently allowed to do at state parks where mnors are also often present.

    stay safe.
    I've said it many times before and I'll say it again. The only way we'll see college carry in VA is either through legislative action (include state agencies in preemption) or through legal action.

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    Regular Member Thundar's Avatar
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    Quote Originally Posted by wylde007 View Post
    Essentially, yes.

    My question was regarding the VCCS (community colleges) which are directly appointed by the Governor and, from my perspective, different than the boards of supervisors at state universities which, while receiving state funds, have private boards.

    I thought they should be considered differently. I guess I was wrong. I hope to use that knowledge to help me formulate an argument to further clarify and quantify the preemption statute in coming assembly sessions.

    Sorry to sound obtuse. I considered the situations to be different on a political level. Apparently the VCCS does not.
    I think you were right. VCCS is not a University, nor does it hava a "board". I don't think this opinion applies to vccs at all.
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    Regular Member wylde007's Avatar
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    Angry

    I'm still fuzzy on how an "opinion" can override statutory law. It's not a legislative decision, it's one man's "take" on the shadowy area surrounding the law... which means it ain't the law.
    The quiet war has begun, with silent weapons
    And the newest slavery is to keep the people poor, and stupid
    Novos ordo seclorum ~ Mustaine

    Never argue with an idiot. He will drag you down to his level and beat you with experience.

  19. #19
    Regular Member simmonsjoe's Avatar
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    Quote Originally Posted by wylde007 View Post
    I'm still fuzzy on how an "opinion" can override statutory law. It's not a legislative decision, it's one man's "take" on the shadowy area surrounding the law... which means it ain't the law.
    I feel for you. It is frustrating.
    illegal ≠ immoral legal ≠ moral
    [SIZE=1]"I never submitted the whole system of my opinions to the creed of any party of men whatever in religion, in philosophy, in politics, or in anything else where I was capable of thinking for myself. "Such an addiction is the last degradation of a free and moral agent." - Thomas Jefferson
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    Accomplished Advocate peter nap's Avatar
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    Quote Originally Posted by wylde007 View Post
    I'm still fuzzy on how an "opinion" can override statutory law. It's not a legislative decision, it's one man's "take" on the shadowy area surrounding the law... which means it ain't the law.
    It doesn't. An opinion is an opinion. Kinda like a hiney

    Everyone has one!

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