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View Full Version : Virginia Supreme Court upholds college gun ban rules


gunsmith
01-16-2011, 9:09 PM
http://www2.wsls.com/news/2011/jan/13/2/virginia-supreme-court-upholds-college-gun-ban-rul-ar-772490/




George Mason University's prohibition against guns in campus buildings and at sports and entertainment events does not violate the state or U.S. constitutions, the Virginia Supreme Court ruled Thursday.

The justices unanimously affirmed Fairfax Circuit Judge Michael McWeeny's ruling that the policy does not violate the Second Amendment right to bear arms.

The court also rejected gun owner Rudolph DiGiacinto's claim that the ban violates a provision in the Virginia Constitution that is similar to the Second Amendment. The justices noted that this case is the first in which they have been asked to rule on the state provision.

dantodd
01-16-2011, 9:13 PM
Full text of the opinion is available at: http://www.courts.state.va.us/opinions/opnscvwp/1091934.pdf

dantodd
01-16-2011, 9:17 PM
Virginia's analog to the Second Amendment is nice:

"That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state, therefore, the right of the people to keep and bear arms shall not be infringed; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power."

galactusnt
01-16-2011, 10:16 PM
And so the Viagra decision haunts us again. in Heller they should have ordered all laws to come into strict compliance, but rather than upset the applecart they ruled the other nonsensical crap was "preumptively legal". What bs.

Window_Seat
01-16-2011, 10:36 PM
“As a general rule, the Commonwealth is immune both from actions at law for damages and from suits in equity to restrain governmental action or to compel such action . . . . Sovereign immunity may also bar a declaratory judgment proceeding against the Commonwealth,” Afzall v. Commonwealth, 273 Va. 226, 231, 639 S.E.2d 279, 282 (2007) (citations and quotation marks omitted), and does so for merely statutory claims.

However, sovereign immunity does not preclude declaratory and injunctive relief claims based on self-executing provisions of the Constitution of Virginia or claims based on federal law. Gray, 276 Va. at 104-07, 662S.E.2d at 71-73; see Idaho v. Coeur d’Alene Tribe, 521 U.S. 261, 317 & n.15 (1997) (Souter, J., joined by Stevens, Ginsburg, and Breyer, JJ., dissenting). Thus, a plea of sovereign immunity cannot bar a claim by DiGiacinto for declaratory and injunctive relief, challenging GMU’s authority to promulgate the regulation, based upon a self-executing provision of the Constitution of Virginia. GMU claims that Article I, 14 is not a self-executing provision of the Constitution of Virginia. We disagree.

As an agency of the Commonwealth, GMU is entitled to the protection of sovereign immunity afforded to the state. See Rector & Visitors of the Univ. of Va. v. Carter, 267 Va.242, 245, 591 S.E.2d 76, 78 (2004); James v. Jane, 221 Va. 43, 51, 282 S.E.2d 864, 868 (1980).

Further:

Therefore, under the test articulated in Gray, we hold that Article I, 14 is self-executing and therefore GMU does not have sovereign immunity as to claims arising under that provision.

However, GMU’s sovereign immunity has not been waived to the extent that DiGiacinto’s declaratory judgment proceeding is premised on statutory and non-constitutional claims, and DiGiacinto has not challenged the propriety of the dismissal of all such claims by the circuit court, based upon GMU’s plea of sovereign immunity.

Assuming we get protected carry in the future by a Federal Court, can one (or more) of the Counsel here explain how this could, or might not affect an Indian Reservation if someone decides to go after one because the RKBA in an IR is violated (like in a casino owned & operated by an IR)? Do IRs declare sovereign immunity because they are their own sovereign nations? Is that how it works, or do I need to wait for Law School? :laugh:

And so the Viagra decision haunts us again. in Heller they should have ordered all laws to come into strict compliance, but rather than upset the applecart they ruled the other nonsensical crap was "preumptively legal". What bs.

Maybe not so bad as it looks... Opinions like this, and others may come back to haunt the State, as well as the Feds. Here's why (again, in my IANAL mind):

As far as GFSZs, since this opinion (and I'm sure others like it in the future, especially if it goes all the way to SCOTUS) does not address the zone itself, could the zone (whether it's 1000' or 1000 miles) be in serious jeopardy, and cause crap like (not only) our GFSZ struck, but also 921(a)(22)(b), and 922 (q)(2)(A)?

ETA: How can the "zone" itself not be brought under strict scrutiny if it's not part of the sensitive places doctrine discussed in Heller as well as the cases (including Digiacinto) that follow?

Erik.

hoffmang
01-16-2011, 10:42 PM
And this is why so many of us ask people to not file cases pro-se...

-Gene

N6ATF
01-16-2011, 11:39 PM
I'm going to have to fly out there to clean up all the defecation they just laid on the Founders' graves.

kcbrown
01-17-2011, 1:59 AM
The highest state courts will play games like this routinely. I don't understand why some here think the circuit courts won't...

I keep saying that courts will rule however they please, and I keep being proved correct... :mad:

rod
01-17-2011, 5:05 AM
Here's an e-mail I received from VCDL about this.....

1. Yesterday the Virginia Supreme Court ruled that the George Mason University gun ban was constitutional because it was narrowly tailored and applied to a school or government building or special event. It does not ban lawful carry outside of the school buildings.

The bad news is, of course, that the GMU ban was upheld. One key question that was NOT appealed to the Supreme Court was if GMU was even allowed to CREATE such a ban under Virginia law. The Court only ruled on whether the ban, however it got put in place - rightly or wrongly, was constitutional.

The good news is that for other public universities and colleges, such as VCU, which have a gun ban outside of their buildings and special events, those bans have been **effectively** invalidated. However, they won't actually be invalidated until the university or college has been taken to court.

For GMU law-abiding gun owners, including students, can have a gun outside of the school buildings or special events constitutionally, including stored in a vehicle. For other universities or colleges the same won't apply until a court rules their ban to be invalid. I would be quite surprised if any of those schools were to even attempt to enforce their ban outside of a school building or special event as they are virtually guaranteed to lose in court. I'm betting that they keep their bans on the books to intimidate the unknowing, but do so without any attempt at actual enforcement.

This isn't necessarily over, either. A new lawsuit can explore many areas of the legality of the ban that the previous suit did not.

Attorney General Cuccinelli said last year that when the suit was over he would explain why he sided with GMU and didn't abstain from defending GMU (an outside counsel could have been used to do so). I will advise when we know more on this.


************************************************** ***
2. New gun bills introduced, including more VCDL requested bills
************************************************** ***

The following gun bill has been WITHDRAWN:

SB 755 - Senator Reynolds - allows someone who has had mental health treatment or substance abuse treatment in a residential setting to petition the Court for restoration of a CHP before the current five year waiting period has expired

-

The following gun bill has had its status changed from Strongly Support to Oppose for consistency reasons. Since CHPs are available to all citizens, including correctional officers, this bill is not needed.

HB 2062 - Delegate Bell - adds a correctional officer to list of those who can carry concealed without a CHP - VCDL Opposes this bill

-

New bills:

HB 2380 - Delegate Pogge - gives certain civil immunities to all employers who do not prohibit their employees from storing their firearms in their private vehicles while such private vehicles are parked on company property. Put in at VCDL's request - VCDL Strongly Supports this bill

HB 2386 - Delegate Jackson Miller - changes concealed HANDGUN permits to concealed WEAPON permits - VCDL Strongly Supports this bill

SB 903 - Senator Deeds - would make someone convicted of having a firearm on school property guilty of a VIOLENT felony. It is bad enough that a person who inadvertently brings a gun onto K-12 property can be turned into a felon without the state having to prove any kind of evil intent, but this makes it even more unjust - VCDL Strongly Opposes this bill

SB 1250 - Senator Vogel - state agency preemption. Prohibits any state agency from enacting gun control without the permission of the General Assembly. Put in at VCDL's request - VCDL Strongly Supports this bill

-

Finally, having an email exchange with Delegate Surovell on one of his bills, I am changing the bill's previous analysis to this:

HJ 604 - Delegate Surovell - under this suggested change to Virginia's Constitution, if enough cities and counties get together and represent enough of Virginia's population, they can repeal any state law or regulation - VCDL Strongly Opposes this bill, which is not directed at gun laws per se, because of the danger posed to gun rights if enough localities banned together and repealed firearm preemption laws or turned the Dillon Rule into mush

yellowfin
01-17-2011, 5:34 AM
The good news is that this issue will probably be won through the legislatures.

Dreaded Claymore
01-17-2011, 8:29 AM
DAMN! :mad:

GMason
01-17-2011, 11:30 AM
My Grandson Col. Richard Barnes Mason is Stationed in the Spanish territories. Maybe someday they will name a fort after him. But enough about my grandson.


We were waiting for Nordyke to help us out on the sensitive places criteria, under the Second Amendment, but we were quite confident we had it beat under Virginia's Declaration of Rights. You see there is no such thing under Virgina law and a Friend of mine Thomas Jefferson has proposed a new public university where he rightly will require the students to be trained in the manual exercise in their hours of recreation with the arms being supplied by the University. Our Declaration of Rights requires the militia to be trained to arms and as the practices of Manhood are best remembered when the people are young, Mr. Jefferson as the Commander of the militia of Albemarle County is well acquainted with the manual exercises of the men under his command and will require them to be trained. I predict that if we ever get into a quarrel over the Spanish territories and our young men refuse to serve, our courts will state that at the age of eighteen, a man is capable intellectually and physically of bearing arms; During the war of the revolution, sixteen was the military age. All of that age were enrolled in the militia, subject to be drafted, or called out en masse;. You see, here in Virginia we take our militia very seriously as the only natural and real security of a free state.

The gentleman freeholder who argued the case could not have done a better job. He essentially lived at my Plantation house Gunston Hall for a better part of Two years. If you have not done so, I would urge you to read the briefs in this case. It was well known that two of the justices did not believe in the individual right enshrined in our Declaration as they had previously stated so just before the Heller case. We now know the whole court believes this. The doctrine of co-extensive protections is one of the reasons there has never been a case before the court because the Federal courts believed it was a collective right and the modern Virginia court was all to happy to oblige blocking any attempt to hear a case. They were now all to happy to oblige again and ignore their oath's of office to support the Virginia Constitution. I wonder what is worse. Not having a state constitutional provision or having one that gets ignored?

Good Luck on the Nordyke case, the 4th circuit which is 2 Blocks down the road from the Virginia Supreme Court did a fair job in United States v. Chester.

"But it is easier to describe a Disease in the Body politic, than to point out a proper Physician." George Mason

gunsmith
01-17-2011, 11:43 AM
And this is why so many of us ask people to not file cases pro-se...

-Gene

sometimes I think we need to only let people who can pass a rigorous psychological test file gun lawsuits, nut jobs do more damage in court then they do in a parking lot with a glock.

GMason
01-17-2011, 12:28 PM
Further:



Assuming we get protected carry in the future by a Federal Court, can one (or more) of the Counsel here explain how this could, or might not affect an Indian Reservation if someone decides to go after one because the RKBA in an IR is violated (like in a casino owned & operated by an IR)? Do IRs declare sovereign immunity because they are their own sovereign nations? Is that how it works, or do I need to wait for Law School? :laugh:



Maybe not so bad as it looks... Opinions like this, and others may come back to haunt the State, as well as the Feds. Here's why (again, in my IANAL mind):

As far as GFSZs, since this opinion (and I'm sure others like it in the future, especially if it goes all the way to SCOTUS) does not address the zone itself, could the zone (whether it's 1000' or 1000 miles) be in serious jeopardy, and cause crap like (not only) our GFSZ struck, but also 921(a)(22)(b), and 922 (q)(2)(A)?

ETA: How can the "zone" itself not be brought under strict scrutiny if it's not part of the sensitive places doctrine discussed in Heller as well as the cases (including Digiacinto) that follow?

Erik.

To your last section on the GFSZA the DiGiacinto case was not implicated because colleges are not covered under 18 U.S.C. 922. The United States v. Lopez, 514 U.S. 549 (1995) case is very interesting because Justice Breyer in his dissent argued that schools were sensitive places and the law had to be upheld, but the court rejected that argument. The U.S. Supreme court needs to explain its sensitive place criteria since it has under the commerce clause rejected the safety of students argument.