The Current Concern
In the last few months, discussion of the wisdom or folly of allowing guns on college campuses has erupted. Several state legislatures have discussed bills to allow students, employees, and even visitors who have concealed carry permit licenses to be armed on campus.1 Some public universities have already lost legal battles with their state legislatures on this matter; faculty, staff, and students are now free to carry on campus at the University of Colorado.2 The University of Utah lost a similar suit, but students are prohibited by the student conduct code from possessing a firearm on campus.3 (Employees and visitors do not appear to be similarly restricted.)4
In the case of the University of Oregon system, the Oregon Court of Appeals overturned the system’s ban on carrying guns, because “Only the Legislature can regulate the use, sale and possession of firearms.”5 The University of Oregon decided to reimpose the ban on students, employees, contractors, and all others through contract.6 These contractual prohibitions do not apply to visitors to the campus. If an insane person walks onto a University of Oregon campus with a rifle, he will not be technically outside the law (until he makes threats or opens fire); students or faculty who defend themselves from a criminal attack with a gun could be subject to expulsion or termination.
Wisconsin law allows universities to prohibit concealed carry inside of buildings; the statute also requires the university to inform those entering buildings of the prohibition by “Post[ing] signs in prominent places near entrances where entrant[s] can see them.”7
In Idaho, public colleges expressed great disapproval of the actions of state legislators in legalizing concealed carry, but recognized that in such a legal and political battle they will lose.8 The new law took effect July 1, 2014.
Are Institutions of Higher Learning Different?
At the core of the current debate over whether institutions of higher learning may prohibit firearms on campus is the question of whether colleges are fundamentally different from the larger society. Complicating this matter is that the larger society’s view of gun possession has changed over the last several decades.
In most of the United States, a concealed weapon permit is now readily available to most adults who pass a criminal and mental health background check, complete a training class, and pay a generally modest license fee. In the last twenty-five years, most American states have replaced discretionary concealed handgun permit laws (which allowed sheriffs, police chiefs, or judges great discretion as to whether to issue a permit) with what are widely known as “shall-issue” laws. These laws strictly define who has a right to a license, and who is prohibited.9
As of December 31, 2011, at least eight million concealed carry permits are active in the United States.10 This astonishing expansion of licensing (beginning in 1987) has been accompanied by a dramatic decline in national murder rates.11 Whether this decline in murder rates is simply coincidence is arguable. What seems clear is that widespread issuance of concealed weapon licenses has not endangered public safety in the larger society: at the ballgame, at the supermarket, at the movie theater. A fairly large fraction of Americans clearly feel that there is some purpose in having a license to carry a concealed handgun for self-defense.
College campuses, however, are one of the places where, in most states, such licenses are not valid. In some cases, state law specifically excludes college campuses from the ambit of these rules. In other cases, the university imposes restrictions on students, faculty, staff, and other visitors through contract or trespass laws. In general, college campuses limit firearms possession much more stringently than the larger society.
Restrictions on possession of firearms on campus fall into two categories: prohibition in dorms and university-owned housing (on campus and off) and prohibition on carrying weapons on campus. The restriction on keeping firearms in university housing would seem pretty obvious to most, but in many rural campus settings, hunting is a common student pastime. At least into the early 1970s, it appears that students kept hunting guns in their dorm rooms on some University of Alaska campuses.12 Even today, the University of Alaska allows limited possession of firearms on campus, although they must be secured.13
One argument for limiting possession of firearms in dorms and university-owned housing is that while the U.S. Supreme Court has found that a right to keep a firearm in one’s home is protected by the Second Amendment, university-owned housing is not the equivalent of one’s home: a person who merely rents housing conditional upon attending college “has no title, interest, or estate in the University-owned housing.”14 By this reasoning, the university as landlord may prohibit possession of firearms, even in off-campus housing.
Michael L. Smith articulates a contrary viewpoint in a recent UCLA Law Review article, pointing out that while student housing may seem fundamentally different from a private residence in terms of permanence, the courts have generally recognized dorm rooms as equivalent to a “home” from the standpoint of privacy expectations concerning the Fourth Amendment. Furthermore, university-owned off-campus student apartments are analogous to a privately-owned apartment, which suggests that a ban on student possession of a firearm violates the right to have a firearm in one’s home.15 If this model is correct, the only basis for a university to impose gun prohibitions in student housing would be a return to the doctrine of in loco parentis.
For those who prefer the “no title, interest, or estate” approach, consider if, with regard to university housing, the courts treated the rest of the Bill of Rights the same way. It would be quite easy to construct justifications for why dormitory residents’ right to freedom of speech and to be secure against warrantless searches could be considered inimical to a “safe, respectful…and orderly environment that is conducive to education and learning.”16 Hate speech, pornographic materials, or illegal drugs would seem sufficiently incompatible with a “safe, respectful, and orderly environment” to justify restrictions on what students keep in their dorm rooms. Does the Bill of Rights apply to dorm rooms or not?
If regulation of possession of firearms in university-owned housing seems reasonable, what about employees, students, and visitors carrying concealed weapons on campus? The pressure for such freedom comes largely from organizations such as Students for Concealed Carry (SCC), which came into existence after the Virginia Tech massacre in 2007. Virginia Tech, like most colleges, prohibited concealed carry by those licensed.17 Many students (and increasingly, some faculty and staff)18 became convinced that the general prohibition of possession of firearms on college campuses had created a dangerous situation. Inadvertently, such general prohibitions with no effective method of enforcement told mass murderers that here was a situation where the chances that anyone would fight back were very limited, because the only people armed on campus would be police officers. The number of officers would be small, and when they appeared, they would be obvious targets because of their uniforms.
SCC’s theory is that in the absence of these prohibitions, some faculty, staff, and usually older, nontraditional-age students would be armed with concealed weapons. While the odds of any particular victim on a college campus being armed and able to stop such an attack seem small, the risks of allowing concealed carry by those licensed to do so seem even smaller.
Weapons and College in Europe
Digging into the history of weapons regulation on college campuses presents a curious and sometimes startling history. There was a long European medieval tradition of “town and gown riots” in which townspeople and students (and sometimes faculty) engaged in frequently bloody fights, often with fatalities. One of Oxford’s first such incidents involved “a scholar practicing archery [who] killed a woman. Townsmen captured and hanged three of his colleagues.” It does not appear the careless archer was punished. Other Oxford town and gown riots involved students attacking townspeople, with loss of lives.19 Students were apparently armed; a thirteenth-century account tells us that three thousand students and teachers attacked the townies, “[a]rmed with bow and arrows, swords and bucklers, slings and stones.”20
Some of the sources of the European town and gown conflicts that appear in the historical record were simply not present in America: “The degree of privilege enjoyed by medieval universities and the intensity of town-gown conflicts have no parallels in America.”21 Still, there were occasional riots, such as what happened in 1812 “when city residents and Yale students armed with clubs and knives clashed with each other.”22
Town and gown riots are not the only reminder that European university students appeared to have weapons at their disposal. World War II movies often used the stereotype of a noble German officer with a monocle and a “Heidelberg dueling scar”—and like many stereotypes, it had real-world origins. As one nineteenth-century traveler observed, Heidelberg University, “like most other German universities, has always been famous for dueling among the students. Indeed, no student has any standing as such, unless he bears a scar received in a duel. Many men are met in Europe with ugly scars on face and head who regard their disfigurement as their greatest honor.”23
While almost everyone knows about the Hamilton-Burr duel, few Americans can name many others—and this is for a reason. Dueling with pistols in the United States was a short-lived fad brought over by the European military officers who participated (on both sides) in the American Revolution. After Hamilton’s death, Christian opposition to dueling caused its quick disappearance, except in the South, where it faded after the Civil War.24 While dueling among military officers, lawyers, and newspaper editors was certainly common in the antebellum South, it does not appear to have occurred frequently among college students.
The American Experience
One great difficulty in determining what rules were historically applied to students concerning weapons is that well into the 1970s, colleges and universities regarded their relationship with students to be in loco parentis: “Like a parent, the college set the limits of students’ freedom—in dress, in deportment, and in curfew hours. Like a parent, the college strove to be flexible yet firm, benevolent but not indulgent.”25 This was not surprising; throughout much of American history, the “age of majority,” unless altered by statute, was twenty-one.26 Most college students were technically “infants,” and colleges felt an obligation to look after their charges.
When I was a freshman at the University of Southern California in 1973–1974, rules of student conduct were in place to discourage heavy drinking and opportunities for casual sex among students. It is not surprising, then, that colleges often passed rules to dissuade hot-headed young men from doing foolish things with weapons of all sorts.
Of course, when the Twenty-Sixth Amendment lowered the voting age from twenty-one to eighteen in 1971,27 it pulled the rug out from the idea that eighteen to twenty-year-olds were not adults. As the bumper sticker of the time put it, “Old Enough to Fight, Old Enough to Vote,” so why wouldn’t students be regarded as old enough to make decisions about what time to return to their dorm rooms and who spent the night there?
In loco parentis was certainly always the prevailing perspective of American colleges, although weapons limitations do not seem to have been in existence during colonial and revolutionary times. In fact, the evidence from these periods shows that in many colonies (and states, after the revolution) students were required to be armed for militia duty while at college. Colonies and states had different age limits for militia duty, but sixteen, seventeen, and eighteen were all quite common.28
Rhode Island’s 1718 militia law required “all Male Persons…from the Age of Sixteen” to bear arms in the militia and “always be provided with good Musket, or Fuzee”—and a fine was charged for failure to so appear.29 Georgia’s 1784 militia law required all free men “from the Age of Sixteen” to appear at militia musters “completely armed and furnished with one rifle musket, fowling-piece or fuse fit for action,” with cartridges appropriate to that weapon.30 It seems most unlikely that having just fought a war on very short notice as British troops invaded without warning, students were expected to head home to acquire weapons for militia duty.
It was not at all uncommon for states to exempt faculty (but not students) from this obligation to be armed for militia duty, as did New Jersey in 1778.31 A few states, for example, Connecticut in 1786, exempted faculty and students (along with a few other occupations) from militia duty, and therefore the obligation to be armed,32 but these appear to be the exception. And even states such as Virginia in 1757,33 which sometimes exempted students and faculty from being armed for militia duty, more often exempted only faculty.34
During colonial times colleges often prohibited students from hunting, but this does not appear to have been a prohibition on firearms possession. In the early eighteenth century, Harvard prohibited fishing and skating as well as hunting as distractions from the duties of a scholar. For similar reasons, Yale, Princeton, King’s College (now Columbia) prohibited many sports and recreational activities such as field hockey, games involving balls, or swimming off campus.35 If restrictions on hunting extended to a prohibition on firearms possession, it must have been implied.
In the nineteenth century, as the need for militia preparedness faded, colleges started to prohibit “firearms, or any deadly weapon whatever,” as Waterville College in Maine did in 1832.36 Similar language restricted students of the University of Nashville in 1837,37 Kemper College near St. Louis, Missouri, in 1840,38 and McKenzie College in Texas in 1860.39 In 1830, Dickinson College had somewhat more broadly prohibited students from keeping “any riding beast, dog, gun, fire arms or ammunition, sword-dirk, sword-cane, or any deadly weapon whatever.”40 And the issue of armed college students was not apparently considered a sign of testosterone poisoning. Its 1860 catalog posted Albion Female College’s prohibition of “Gunpowder, firearms, or deadly weapons of any kind on the premises.”41
A reminder that rules are often passed, but not necessarily followed, comes from La Grange College in northern Alabama in 1837. A Bowie knife fight between two students left one dead,42 and the faculty reminded not only students but the general public that La Grange College already had rules on this subject: no student was to keep or carry deadly weapons.43
Other schools had a more nuanced (or perhaps confused) approach. The University of North Carolina, for example, prohibited students from keeping “a dog, or fire arms, or gunpowder” and carrying or keeping “a sword, dirk, sword-cane, or any deadly weapon.” And yet, the next clause provided: “nor shall he use fire arms without permission from the President.”44 It is an odd construction that seems to imply that under some circumstances students might be permitted to use firearms, but not to keep them.
Facing the other, more logically plausible direction, Oakland College of Mississippi, like many schools of this period, barred “wearing or carrying a dirk or other deadly weapon” but did not actually prohibit possession of such weapons in one’s residence.45 Similarly, Illinois College’s 1850 student code prohibited carrying deadly weapons, but appears not to have regulated possession in one’s room.46
There are also startling events that remind us that not all colleges were restrictive. Hundreds of members of the Oberlin College community—including students and professors—armed themselves with rifles and handguns on a few minutes’ notice as part of their successful effort to prevent a deputy U.S. marshal and two private slave catchers from taking a runaway slave back to the South.47 This was not a violation of college rules. The only weapons restriction listed in the Oberlin College regulations stated: “No student when in Town, shall use firearms, or burn gun-powder in any way, without permission from a member of the Faculty.”48 Since many faculty members were part of this mob action, students might well have inferred that they had permission to free a slave at gunpoint.
After the Civil War, rules concerning firearms and college students continue to be established. Yale prohibited students from “carrying deadly weapons,” keeping “any kind of firearms, fireworks or gunpowder,” or firing any of these “in or near the College yard” or near “the dwelling-house or person of any member of the Faculty.”49 The state of Mississippi prohibited students at any “university, college, or school” from possessing not only on college/school grounds but “within two miles thereof, any weapon the carrying of which concealed is prohibited.”50 In its 1890–1891 catalogue, Kentucky University prohibited students from keeping or using “fire-arms, a dirk, a bowie-knife, or any other deadly weapon.”51
Other institutions had rules that were somewhat less restrictive. From 1908 to 1909, Connecticut Agricultural College barred students from keeping “firearms of any description other than the service rifle.”52 Presumably, this was an allowance for ROTC students.
Weapons Regulation on the Modern American Campus
Surprisingly enough, it has been harder to gather information on the recent history of college weapons regulation. Responses to my queries of college public safety departments have been nonexistent or less than helpful—perhaps because producing information about the history of such policies is perceived as opening the school to potential lawsuits. An examination of weapons on campus policies dating from 1970 suggests that while early twentieth-century rules persisted, student demonstrations of the 1960s spurred an increase in such regulations.
Reading the National Association of State Universities and Land-Grant Colleges 1970 report, Constructive Changes to Ease Campus Tensions, is a reminder of how much disruption occurred on college campuses in the 1960s, as various protests escalated from placards to sit-ins, to destruction of campus property and, sometimes, death. This compilation lists dozens of efforts by colleges and universities to involve students in the process of governance traditionally limited to administration and faculty. This included involving students in curriculum revisions and adding student representatives to university senates and committees as well as to faculty search and selection committees.53
Policies concerning the use of police to deal with protests reveal a curious mixture of a reluctance to call police unless demonstrations reached a very severe level,54 directing that police officers would not be armed for daytime patrols,55 but also doubling the campus police force at the University of California, Berkeley,56 and directing that “if force is necessary, [campus police] will act promptly and decisively.”57
Most relevant is the report’s section on firearms policies: “A majority of state universities have policies regulating firearms,” which suggests that the situation today—where 97 percent of higher education institutions prohibit firearms on campus,58 may be a byproduct of that turbulent time. While many of the policies presented in 1970 appear to have been longstanding, some campuses had either added new restrictions on firearms possession or made them more explicit because of the turmoil of the 1960s.59
Colleges pass policies, but do students necessarily follow them? A 1999 survey found that “6.4% of male students, and 1.5% of female students had a working firearm at school.”60 It appears that this survey, like most studies looking at college students and guns, included many students who lived off campus and thus may not have been violating law or campus policy.61
Gun possession was more common by students in regions of the U.S. where gun ownership is more common,62 suggesting that the apple is not falling far from the tree. Complicating the analysis is that students who kept a gun at college reported that they were more than four times likely to have been threatened with a firearm than the non-gun-owning students.63 It is not a stretch to suspect that student gun ownership was a response to a perceived or real danger. Over the years, more than one doctor has confided to me that he broke state law and university policy during his residency by carrying a concealed weapon to and from urban medical schools.
A worrisome piece of data from a 2002 survey asked students about their alcohol consumption and driving. While it has been widely reported that firearms owners were more likely to be binge drinkers who drive than non-firearms owners, examination of the data suggests other possible explanations. Firearms owners were three times more likely to describe their behavior as “binge and drive” than the total sample (27 percent versus 9 percent). “Binge but not drive” percentages were essentially identical (36 percent versus 34 percent).64
Some of this difference could be related to vehicle availability, because firearms owners were much more likely to live off-campus (86 percent versus 57 percent), where vehicles were needed to travel to classes and fewer restrictions on firearms possession exist.65 It would be surprising indeed, if those living on campus were as likely to have a car as those living off campus. The 34 percent of the total sample who described their behavior as “binge but not drive” probably includes a number of students who did not have a car. Since the total sample was a year younger than the firearms owners, differences in car ownership may be based on economic status, not just location of residence. It may be that firearms ownership is not a sign of unusually risky student behavior, but simply differences in where firearms-owning students live.
Firearms owners were also less likely to be non-drinkers than the total sample (12 percent versus 20 percent).66 Again, this may be an indication that the student firearms owners were more likely to live off campus, where alcohol might be easier to obtain. In addition, student firearms owners were older than the total sample (age twenty-two versus twenty-one). Since twenty-one is the typical legal age for legal alcohol purchase, it would be surprising if some of the apparent difference in behavior reflects not the values of firearm-owning students, but of students who live off campus and are old enough to purchase alcohol legally.
Regardless of whether students possess firearms or not, the binge drinking results for the total sample are disturbing: 43 percent of the total sample and 63 percent of the firearms owners. Irrespective of campus policy on firearms, it is quite clear that campus policy on alcohol is worthy of serious reexamination.67
A survey of college police chiefs found that 97 percent of their institutions had firearms prohibition policies on campus.68 Curiously, while a strong majority (86 percent) of police chiefs “strongly disagreed” or “disagreed” with the statement, “If students were allowed to carry concealed firearms on campus, it would prevent some or all campus killings,” 5 percent “strongly agreed” or “agreed” that it would have a positive benefit, and 9 percent were uncertain.69
Another interesting aspect of the survey was the police chief response to the statement, “Because campus life is stressful to so many students, it is almost impossible to identify firearm violence-prone individuals,”: only 19 percent “strongly agreed” or “agreed,” while 71 percent “disagreed” or “strongly disagreed.”70 This suggests that police chiefs largely think it is possible to identify persons at risk—that treating all college students as equally likely to misuse firearms is incorrect. It also suggests that risk factors may exist that provide a more selective, sensible basis for firearms restrictions on campus based on criminal history, mental illness, age, or possession of a concealed weapon license (which necessarily excludes students with those other risk factors).
Student codes prohibiting firearms on campus have a long tradition in America—but why do so many colleges and universities apply this ban to employees as well? Rob Benford describes his efforts as a faculty member to create a gun-free zone on campus at the University of Nebraska-Lincoln (UNL)—which might be the model that has been used elsewhere. Benford was reacting to a 1992 incident at UNL, when a graduate student “pointed a semiautomatic assault rifle at students, and pulled the trigger.” The gun jammed, and while he was trying to clear the jam, other students disarmed the graduate student. He was convicted but found not guilty by reason of insanity.71
A subsequent survey of UNL students found that “14.2% of the male students and 4.6% of the female students admitted that they had carried a gun or knife to campus.” While those who had carried weapons to class was much smaller—“6.9% for males and 1.0% for females”—this motivated Benford and like-minded faculty to pursue a “gun-free zone” policy analogous to the “nuclear-free zone” policies that some nations adopted during the 1990s.72 (It is possible that the incident with the graduate student gunman the previous semester may have motivated additional students to arm themselves.)
Benford discovered that it was much harder to get support for a gun-free zone than anticipated: “Several women from across campus ranks (students, staff, faculty) told us they carried guns in their purses for protection.”73 As a consequence of this widespread carrying of guns for self-defense by women, Benford and associates instead focused on improving overall campus security for women as a method of reducing opposition.
Perhaps the most interesting aspect of Benford’s policy is that rather than make the gun-free zone policy applicable only to students, “in the interests of fairness and equality, we sought to extend the policy to all members of the UNL community, including faculty and staff,” and the UNL board of regents did so.74 The traditional argument for disarming students has been that they are especially prone to violence because of age and alcohol. Does the same policy really make sense applied to faculty and staff as well? It would appear that in the case of UNL “fairness and equality” proved more important than allowing responsible adults on campus to provide protection from a random attack.
The Changing Nature of Firearms Regulation on Campus
It appears that the disruptions of the 1960s played a significant role in increasing how broadly colleges and universities adopted campus firearms policies. In the 1990s, what had been policy aimed at students because of age and lack of maturity, increasingly became applied to faculty and staff in the interests of “fairness and equality.”
Debate about guns on campus will continue to take place. The relatively rare yet shocking public mass murders, some of which have taken place on college campuses, suggest that the question needs further exploration. Some view carrying arms on campus as an extension of the right to self-defense from the larger society to the campus. Others see guns as part of the problem—and gun-free zones as a way to make campuses safer. Most campuses are intrinsically insecure, and are not suited to metal detectors and limited entry points. Rules without some practical method of enforcement seem unlikely to be effective.